Communication from the Commission to the Council and the European Parliament - Area of Freedom, Security and Justice: Assessment of the Tampere programme and future orientations {SEC(2004)680 et SEC(2004)693}
Date: 2004-06-02
Institutions: European Commission
Subjects: access to the courts, area of freedom, security and justice, fundamental rights, public safety

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 2.6.2004 
COM(2004) 401 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Area of Freedom, Security and Justice: Assessment of the Tampere programme and 
future orientations 

{SEC(2004)680 et SEC(2004)693} 

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TABLE OF CONTENTS 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT Area of Freedom, Security and Justice: Assessment of the 
Tampere programme and future orientations ............................................................................. 1 

1. 

1.1. 

1.2. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

2.5. 

2.6. 

2.7. 

2.8. 

2.9. 

Five years to establish the area of freedom, security and justice ................................. 3 

Important achievements in a difficult environment ..................................................... 3 

A new context .............................................................................................................. 5 

What Priorities for the future of the area of freedom, security and justice.................. 7 

Improve the protection of persons in the exercise of their fundamental rights............ 8 

Encourage initiatives as regards Union citizenship ..................................................... 8 

Develop an integrated border management system and visa policy ............................ 9 

Promote a genuine common policy of management of migratory flows ..................... 9 

Develop a common European asylum policy on a fair basis ..................................... 10 

Establish a European judicial area respecting the legal traditions and systems of the 
Member States, and closely associating those working in relevant areas.................. 10 

Establish a judicial area in civil and commercial matters to facilitate cooperation and 
access to justice .......................................................................................................... 10 

Promote a coherent criminal justice policy................................................................ 11 

Strengthen the efficacy of police and customs action................................................ 13 

2.10. 

Strengthen action to prevent and combat terrorism and specific forms of crime ...... 14 

2.11. 

Stronger action for crime prevention ......................................................................... 15 

2.12.  Develop multidisciplinary mobilisation to combat drugs .......................................... 15 

2.13.  Resolute external action ............................................................................................. 15 

3. 

Conclusions ................................................................................................................ 15 

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1. 

FIVE YEARS TO ESTABLISH THE AREA OF FREEDOM, SECURITY AND JUSTICE 

The progressive establishment of the area of freedom, security and justice was a new 
objective  set  for  the  European  Union  by  the  Treaty  of  Amsterdam.  The  Tampere 
European Council in October 1999 placed this objective at the head of the Union’s 
political agenda and set a very ambitious programme. The programme set out policy 
guidelines  and  practical  objectives,  with  a  timetable  for  their  attainment.  The 
Commission, at the request of the European Council, drew up a scoreboard to review 
progress every six months1. 

This final six-monthly report will therefore mark the end of this five-year period by 
presenting an overall balance sheet and outlining future priorities2. 

In this regard, the Commission is opening a public consultation process and calls on 
interested parties and individuals to send their contributions on a new programme by 
31  August  2004,  to  the  following  address:  DG  JAI  Public  Consultation  “Future  of 
Justice  and  Home  Affairs”,  European  Commission,  LX  46,  1049  Brussels  (Jai-
Tampere-consultation@cec.eu.int). 

1.1. 

Important achievements in a difficult environment 

- Substantial progress has been made in most areas of justice and home affairs 

Compared  to  1999,  progress  to  date  has  been  undeniable  and  tangible.  The 
Commission has presented the main proposals called for at Tampere. 

-  European  public  opinion  supports  the  development  of  European  action  in  the 
field of justice and home affairs 

Public  opinion  surveys  (Eurobarometers)  show  that  a  high  proportion  of  citizens 
fully support cooperation and joint action at European level3. In particular, nationals 

1 

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3 

A Commission Communication to the Council and Parliament “Scoreboard to review progress on the 
creation of an area of freedom, security and justice in the European Union” has been presented every 
six-month since the Tampere European Council. The references are as follows: COM(2000)167 final, 
24.3.2000; COM(2000)782 final, 30.11.2000; COM(2001)278 final, 23.05.2001; COM(2001)628 final, 
30.10.2001; COM(2002)261 final, 30.5.2002; COM(2002)738 final, 16.12.2002; COM(2003)291 final, 
22.5.2003; COM(2003)812 final, 30.12.2003. 
The Commission Staff Working Document “Area of Freedom, Security and Justice: assessment of the 
Tampere  programme  and  future  orientations”  SEC(2004)693  includes  the  assessment  by  sector.  The 
Commission Staff Working Document SEC(2004)680 contains a list of the most important instruments 
adopted within the framework of the Tampere programme (the “Scoreboard”). 
A recent Eurobarometer conducted in December 2003 confirms the results of previous Eurobarometers. 
The citizens of European are clearly in favour of a common policy on asylum and immigration. 56% 
recognise  the  economic  needs  of  immigrants  and  66%  want  them  to  enjoy  equal  rights.  At  the  same 
time,  80%  are  in  favour  of  strengthening  checks  on  persons  from  third  countries  at  external  borders. 
Nine citizens out of 10 advocate judicial cooperation in civil matters, in particular family matters, and 
the equal rights of defence in all Member States. Concerning cross-border crime, citizens are aware that 
no Member State alone is in a position to tackle the problem. The results of the survey show that 71% 
consider  that  joint  decisions  and  joint  actions  are  the  best  way  of  preventing  and  of  fighting  crime 
throughout the European Union. 

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of  new  Member  States  have  high  expectations  of  the  European  Union  regarding 
security4. 

-  The  justice  and  home  affairs  dimension  is  now  firmly  identified  as  one  of  the 
Union’s priority policies 

These  matters  are  regularly  on  the  European  Council’s  agenda,  and  the  volume  of 
justice and home affairs business being done in the European institutions is evidence 
of  their  vital  importance.  The  Commission  Communication  on  the  new  financial 
perspective  also  reflects  the  growing  importance  of  these  matters,  as  the 
establishment of the area of freedom, security and justice is the central element of the 
new heading “European Citizenship”5. 

- Within the general framework of Tampere, specific priorities were identified by 
the European Council in response to serious unforeseen events 

The Union has proved it can act efficiently and rapidly when the situation demands. 

This  sensitivity  to  crises,  such  as  the  tragic  events  of  11  September  2001  and  11 
March  2004,  have  sometimes  given  rise  to  criticism  that  progress  is  made  in  an 
unbalanced way overemphasising security aspects.. While this is the impression that 
may be given by certain media reports, European integration in this area is based 
on  a  rigorous  concept  of  the  protection  of  fundamental  rights,  and  the 
Commission  has  always  been  at  pains  to  ensure  balance  between  the  freedom, 
security and justice aspects. In addition, the Union must guarantee a high level 
of security so that the freedoms can be exercised to the full. 

-  The  constraints  of  the  decision-making  process  and  of  the  current  institutional 
context preclude the effective, rapid and transparent attainment of certain political 
commitments 

Despite  the  resolute  line  taken  by  the  Tampere  conclusions,  it  was  not  always 
possible  to  reach  agreement  at  European  level  for  the  adoption  of  certain  sensitive 
measures relating to policies which remain at the core of national sovereignty. 

The legal and institutional constraints of the current Treaties, where unanimity in 
the Council generally remains the rule, partly explain these difficulties. The Member 
States  are  sometimes  reluctant  to  cooperate  within  this  new  European  framework 
when  their  interests  are  at  stake.  Moreover,  the  right  of  initiative  shared  with  the 
Member States sometimes had the effect that national concerns were given priority 
over Tampere priorities. In addition, the current restrictions on Parliament’s role as 
co-legislator have been criticised in terms of the transparency of the decision-making 
system. 

Once  the  instruments  are  adopted,  the  institutional  limits  regarding  the  real 
possibilities  for  verifying  the  implementation  of  policies  by  national  authorities, 
given  the  limited  role  of  the  Court  of  Justice  and  the  restricted  powers  of  the 

4 

5 

According to the results of the Eurobarometer, the citizens of the new Member States are more inclined 
fear corruption, drugs, organised crime and money laundering. 
COM(2004)101, 10.2.2004. 

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Commission as regards police and judicial cooperation in criminal matters, are a real 
obstacle to ensuring that the instruments and decisions adopted are actually effective. 

In addition, Union action cannot be effective if it  is not backed up, in the  Member 
States, by a declared political determination to ensure that European decisions have 
effect in reality. It is up to the experts in the Member States to use the opportunities 
for cooperation that European integration offers. 

In  conclusion,  it  is  clear  that  the  successes  that  have  been  achieved  are 
considerable.  However,  the  original  ambition  was  limited  by  institutional 
constraints, and sometimes also by a lack of sufficient political consensus. The step 
by  step  approach  was  often  the  only  possible  way  of  moving  forward.  For  the 
Commission, the establishment of the area of freedom, security and justice has been 
a  strategic  priority  to  be  attained  also  with  contributions  from  several  of  the 
Union’s policies. 

1.2. 

A new context 

In a new context, the institutional progress envisaged in the field of justice and home 
affairs  at  the  Intergovernmental  Conference,  and  in  particular  the  transition  to 
qualified majority voting in the enlarged Union, will make it possible to increase the 
rate of completion of work. 

But the possibilities offered by the Treaties of Amsterdam and Nice will have to be 
fully exploited. 

Apart from certain new decision making procedures which automatically entered into 
force  on  1  February  2003  and  on  1  May  2004,  Article  67(2)  of  the  EC  Treaty 
provides  that  the  Council,  after  1  May  2004,  is  to  take  a  decision  with  a  view  to 
providing for all or parts of the areas covered by Title IV to be governed by the co-
decision procedure6. It would be legitimate to make use of this facility immediately 
after 1 May. 

Enlargement  will  increase  the  number  of  citizens  wishing  to  enjoy  the  benefits  of 
living and moving in the area of freedom, security and justice. The adoption of high 
common standards as regards security and justice is bound to help strengthen 
the general level of security throughout the territory. 

Enlargement  also  raises  specific  challenges  for  certain  policies,  such  as  the 
strengthening  of  external  borders,  the  establishment  of  the  second-generation 
Schengen  Information  System  and  more  generally  the  preparation  of  the  new 
Member  States  for  full  accession  to  the  Schengen  ‘acquis’  with  a  view  to 
removing all internal border checks. In this respect, the EU is in process of providing 
the  necessary  means  to  strengthen  the  external  borders  of  the  new  Member  State, 
such  as  the  Schengen  Facility.  In  order  to  allow  for  the  new  Member  States’  full 

6 

Declaration  No  5  concerning  Article  67  of  the  EC  Treaty  annexed  to  the  Treaty  at  Nice  provides 
assistance  for the  interpretation  of  this Article  and  contains  a precise  political  commitment  to  change 
over  to  the  co-decision  procedure  immediately  after  1  May  2004  for  the  measures  provided  for  by 
Article  62(3)  and  63(3)(b)  concerning  the  free  movement  of  third-country  nationals  for  a  maximum 
three-month period and illegal immigration and residence, including repatriation. 

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participation in Schengen and the removal of internal frontiers as swiftly as possible, 
it  is  necessary  to  put  in  place  the  SIS  II  and  undertake  the  evaluation  process 
foreseen by the acquis as soon as possible. Similarly, in judicial matters, the enlarged 
Union further enhances the need to adopt measures to boost mutual confidence in 
order to consolidate the mutual recognition principle. 

In  the  light  of  expected  developments  as  regards  management  of  external  borders, 
solutions will also have to be found guaranteeing that the current variable geometry 
in Schengen does not have a negative effect on the smooth operation of cooperation 
between the Member States implementing the ‘acquis’. 

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2. 

WHAT  PRIORITIES  FOR  THE  FUTURE  OF  THE  AREA  OF  FREEDOM,  SECURITY  AND 
JUSTICE 

Major  practical  progress  has  been  made  in  the  first  phase  of  the  area  of  freedom, 
security and justice. But the objectives set at Tampere have not yet all been achieved. 
Pending  the  results  of  the  Intergovernmental  Conference,  the  current  institutional 
framework  will  cause  difficulties.  In  this  respect,  and  for  the  intermediate  period, 
the possibilities offered by the Treaty of Nice could have an energizing effect. The 
use of Article 67(2) of the EC Treaty should be envisaged. 

Most of the projects in hand flow logically from the Tampere programme, and there 
is consequently some overlap between them and the future priorities. The ambition of 
this Communication is to be the starting point for studying the development of a 
future  programme  of  measures  identifying  priorities  in  the  field  of  justice  and 
home  affairs  for  the  period  2004-09.  This  Communication  will  also  lay  the 
foundations for a public debate. 

Several elements have to be taken into account at Union level for the development 
of the future programme. First, this means measures following on from the Tampere 
programme. In particular: 

- Work still in hand, and long-term measures that have already been defined; 

-  The  degree  of  effective  implementation  of  the  instruments  adopted  and  their 
evaluation.  The  Commission  has  embarked  on  an  exercise  to  evaluate  a  first 
generation  of  instruments  adopted  following  the  Tampere  European  Council.  It  is 
important that the future programme is accompanied by a process that evaluates the 
establishment and implementation of the acquis adopted following Tampere, in order 
to ensure that new proposals complement efficiently the existing instruments. 

Secondly, for the future, proper institutional and financial resources will have to be 
made  available  to  attain  the  new  objectives.  As  regards  the  draft  Constitutional 
Treaty,  the  Commission  believes  that  one  of  its  most  important  aspects  will  be  the 
abolition  of  the  multi-pillar  structure  of  the  Union  and  the  extension  of  the 
Community  method  to  the  full  range  of  justice  and  home  affairs  matters7.  As 
concerns the financial aspect, the Commission has proposed a substantial increase in 
the  resources  available  for  the  area  of  freedom,  security  and  justice  under  the 
“European  Citizenship”  heading.  The  ideas  put  forward  in  this  Communication  do 
not  prejudge  the  proposals  that  will  be  made  in  connection  with  the  new  financial 
perspective or the inter-institutional debates ahead. 

It  will  be  important  to  adhere  to  established  priorities  in  order  to  avoid  an 
excessive dispersal of common action. These priorities will have to take into account 
the  overall  context  facing  the  Union.  In  particular:  economic  divergence  between 
the  regions  of  the  world,  and  political  instability  in  certain  regions  or  countries; 
demographic  changes  in  Europe;  the  expectations  of  citizens  in  relation  to  their 
rights; citizens’ expectations as regards security. 

7 

COM(2003)548 final, 17.9.2003. 

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2.1. 

Improve  the  protection  of  persons  in  the  exercise  of  their  fundamental 
rights 

European  integration  rests  on  common  values  in  the  form  of  fundamental  rights, 
respect  for  the  rule  of  law  and  democratic  institutions.  These  must  be  the  basis  for 
any action of the Union. 

Incorporating  the  Charter  into  the  Constitutional  Treaty  and  accession  to  the 
European  Convention  for  the  protection  of  human  rights  and  fundamental 
freedoms will place the Union, including its institutions, under a legal obligation to 
ensure that in all its areas of activity, fundamental rights are not only respected but 
also actively promoted. In December 2003, the representatives of the Member States 
meeting within the European Council, stressing the importance of human rights data 
collection and analysis with a view to defining Union policy in this field, agreed to 
build upon the existing European Monitoring Centre on Racism and Xenophobia and 
to  extend  its  mandate  to  become  a  Human  Rights  Agency  to  that  effect.  The 
Commission intends to present a Communication in 2004. The specific mandate of 
the  agency  will  be  defined  on  the  basis  of  the  outcome  of  the  debate  which  will 
follow from it. 

The measures taken to protect democracy and the rule of law in  Europe against all 
forms  of  criminality  and  against  terrorism  need  to  respect  fundamental  rights,  the 
right to free movement, the respect of privacy and the rules related to data protection. 

Thought  must  be  given  to  the  need  for  a  single  overall  framework,  which  would 
take account of the specific features and requirements as regards protection of public 
order and public security and the fight against crime, and at the same time the need to 
provide for a high level of protection of private life. It will also have to reflect the 
prospect of rationalising the supervisory authorities that already exist at the European 
Union  level  for  the  protection  of  data  used  for  the  purposes  of  law  enforcement, 
while  respecting  the  competences  of  the  independent  supervisory  body  established 
under  Article  286  of  the  EC  Treaty.  It  will  also  be  necessary  be  attentive  to  the 
relationship  between  Union  action  and  the  action  undertaken  by  the  national 
authorities,  and  to  develop  a  partnership  with  the  private  sector  and  non-
governmental organisations in devising and adopting rules. 

2.2. 

Encourage initiatives as regards Union citizenship 

The strengthening of Union citizenship must remain a major principle of our action. 
The  draft  Constitutional  Treaty  provides  the  possibility  for  a  certain  number  of 
citizens to present a proposal calling on the Commission to give effect to a provision 
of the Constitution. 

Democratic  participation  in  elections  to  the  European  Parliament  has  to  be 
encouraged. Many Union citizens complain about the loss of their right to take part 
in  certain  national  elections8  in  their  country  of  origin,  which  is  not  offset  by  the 
acquisition of a similar right in their host Member State. Consideration will have to 
be given to this point both in the Union and in the Member States. 

8 

Under  the  EC  Treaty,  Union  citizens  can  in  theory  take  part  only  in  the  municipal  and  European 
elections in the Member State in which they reside. 

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The right to freedom of movement, which Union citizens and their family members 
already enjoy, must be fully guaranteed by careful monitoring of the Member States’ 
implementation  of  the  recent  Directive  governing  this  issue.  This  will  also  make  it 
possible to check whether further measures are needed. 

2.3. 

Develop an integrated border management system and visa policy 

In the short and medium term, close attention will have to be paid to establishing the 
conditions  in  which  internal  border  checks  can  be  abolished  with  the  new  Member 
States. 

The establishment of an integrated external border management  system  is provided 
for  by  the  draft  Constitutional  Treaty.  Serious  action  has  already  been  taken  on  it 
following  the  Seville  and  Thessaloniki  European  Councils.  Action  will  have  to 
continue both with new legislation and on the operational and financial fronts. 

In  this  context,  the  smooth  operation  of  the  External  Borders  Agency  must  be 
ensured.  The  development  of  coordination  mechanisms  must  be  strengthened  and 
supplemented  with  the  long-term  objective  of  establishing  a  European  Corps  of 
border  guards to complement  the  national border guards9. To perform its  tasks, the 
Agency should cooperate with other services engaged in border checks, in particular 
customs.  The  possibilities  for  synergies  between  the  Agency  and  the  customs  and 
other services operating at borders should be kept under permanent review. 

This  Union  policy  and  its  implementation  must  be  governed  by  the  principle  of 
solidarity  and  burden-sharing  between  the  Member  States,  including  financial 
burdens.  The  practical  application  of  this  principle  will  entail  mobilisation  of 
substantial funds. 

Visa  policy  will  have  to  address  serious  concerns  regarding  document  security  and 
allow  for  improved  consular  cooperation.  The  work  started  on  biometric  data  in 
travel and identity documents, in particular passports, must also continue. 

The Visa Information System (VIS) and the new Schengen Information System (SIS 
II) must actually come into operation and their full potential should be used. 

Finally,  there  is  a  need  for  greater  cooperation  with  neighbouring  countries,  and  in 
particular  countries  with  whom  we  share  borders,  consistent  with  the  new  Union 
neighbourhood policy. 

2.4. 

Promote a genuine common policy of management of migratory flows 

There  must  be  a  realistic  approach  taking  account  of  economic  and  demographic 
needs, to facilitate the legal admission of immigrants to the Union, in accordance 
with  a  coherent  policy  respecting  the  principle  of  fair  treatment  of  third-country 
nationals.  It  is  clear  that  the  right  of  Member  States  to  set  the  actual  numbers  of 
third-country nationals admitted to work in an employed or self-employed capacity 
will  have  to  be  maintained,  within  an  overall  framework  including  the  respect  of 

9 

Cooperation and coordination entail among other things the provision of common equipment, specific 
training and a risk analysis capacity. 

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Community  preference.  The  interests  of  countries  of  origin  should  be  taken  into 
account. 

Integration  policy,  of  third  country  nationals,  will  have  to  be  promoted  and 
continued.  In  this  perspective,  the  Union  must  put  in  place  adequate  measures  in 
order to support the action of Member States. 

The  credibility  of  a  positive  and  open  common  approach  to  immigration  will  also 
very  much  depend  on  the  ability  of  the  European  Union  to  control  illegal 
immigration.  A  stronger  fight  against  trafficking  in  human  beings,  and  the 
development of an effective policy on returns and readmission, will be facilitated 
by the future Constitutional Treaty. Here as elsewhere, the effectiveness of the action 
will depend largely on strong solidarity. 

2.5. 

Develop a common European asylum policy on a fair basis 

A better balance between the efforts made by the Member States in the reception of 
refugees  and  displaced  persons  will  be  achieved  by  means  of  the  principle  of 
solidarity. An approach based on partnership and cooperation with third countries of 
origin and of transit, countries of first asylum request and of destination, will have to 
be established. 

The main objective of the common European asylum system will be to determine a 
uniform  asylum  and  subsidiary  protection  status,  a  common  procedure  for 
granting and withdrawing this status, and a common system of temporary protection. 

At  the  same  time  there  is  a  need  for  an  integrated  approach  involving  efficient 
administrative  decision-making  procedures  on  returns,  reintegration  schemes  and 
entry  procedures  that  deter  unfounded  requests  and  combat  networks  of  people 
traffickers. This approach is all the more important as the victims of abuses of the 
system are often genuine refugees. 

2.6. 

Establish  a  European  judicial  area  respecting  the  legal  traditions  and 
systems  of  the  Member  States,  and  closely  associating  those  working  in 
relevant areas 

The development of the European judicial area has neither the object nor the effect of 
challenging the legal and judicial traditions of the Member States. This approach, 
based  on  the  proportionality  and  subsidiarity  principles,  is  stated  by  the  draft 
Constitutional  Treaty.  The  principle  of  mutual  recognition  has  been  placed  at  the 
heart of European integration in this field. 

However,  mutual  recognition  requires  a  common  basis  of  shared  principles  and 
minimum standards, in particular in order to strengthen mutual confidence. In order 
to ensure the effectiveness of the European policy on judicial matters it will remain 
necessary to maintain a high degree of involvement of those working in this field. 

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2.7. 

Establish  a  judicial  area  in  civil  and  commercial  matters  to  facilitate 
cooperation and access to justice 

The  development  of  judicial  cooperation  in  civil  matters  must  continue  to  make 
tangible  improvements  in  the  daily  life  of  individuals  and  businesses  by  enabling 
them to assert their rights at Union level. 

One of the first priorities will have to be to continue and increase work provided 
for  by  the  mutual  recognition  programme.  Efforts  should  concentrate  on  fields 
where there are as yet no Community rules on mutual recognition (for example, the 
consequences of separation of married and unmarried couples in property terms, or 
successions  and  wills).  In  addition,  new  mutual  recognition  instruments  not 
appearing in the initial programme might be necessary. For example facilitating the 
recognition  of  various  types  of  documents  will  become  increasingly  important.  In 
certain fields such as successions, the practical problems faced by individuals more 
often concern this type of question than the traditional problem of the recognition of 
judgments. In addition, it might prove useful to facilitate mutual recognition in new 
fields  such  as  the  civil  status  of  individuals,  family  or  civil  relations  between 
individuals (partnerships) or paternity. 

 Another very important field concerns the enforcement of judgments. Only rapid 
and  effective  execution  procedures  will  enable  citizens  and  businesses  to  exercise 
their full legal rights. Further progress with mutual recognition depends on greater 
mutual  trust  between  Member  States,  including  the  adoption  of  certain  minimum 
procedural standards. 

Importance will also have to be given to the actual implementation of Community 
legislation  that  has  been  adopted.  The  appropriate  resources  will  have  to  be 
committed  to  attaining  this  objective,  in  particular  by  developing  the  activities  of 
the European Judicial Network in Civil Matters. Turning to substantive law, the 
Commission  is  already  engaged  in  drafting  a  Common  Reference  Framework  to 
ensure  greater  consistency  in  the  acquis  communautaire  and  improve  its  quality  in 
the field of contract law10. The work should be completed in 2008. 

To meet these ambitious challenges for judicial cooperation in civil and commercial 
matters, it will be advisable to have adequate legal means. The Constitutional Treaty 
will  provide  them.  But  it  will  be  necessary  to  avoid  a  situation  where  in  each 
Member State there are two separate legal regimes, one relating to the disputes with a 
cross-border implication and the other to purely internal disputes11. 

2.8. 

Promote a coherent criminal justice policy 

In the field of criminal justice, the Union should concentrate on four priorities: 

10 

11 

This  Common  Reference  Framework  might  serve  in  the  longer  term  as  the  basis  for  an  optional 
instrument on the law of contracts that the parties could freely choose to use as the law applicable to 
their contract, thus enhancing certainty as to the law in cross-border transactions. 
In the long term such a dual system duality could be inconsistent with the aim of a single area of justice 
for  all  and  could  raise  questions  of  discrimination;  it  could  in  addition  complicate  legislation  at  the 
expense of the transparency which individuals, practitioners and companies need. 

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Continue  mutual  recognition:  As  in  the  civil  field,  the  principle  of  mutual 
recognition must remain the cornerstone of judicial cooperation. 

As  regards  mutual  assistance,  a  single  instrument  based  in  particular  on  mutual 
recognition  should  gradually  replace  the  entire  current  system  of  mutual  legal 
assistance,  in  particular  for  all  questions  concerning  obtaining  evidence.  This 
progress  will  have  to  be  accompanied  by  measures  to  clarify  the  allocation  of 
jurisdiction in order to prevent and solve conflicts of jurisdiction. 

In  the  field  of  the  enforcement  of  judgments  in  criminal  matters,  major  work 
remains  to  be  done.  The  system  for  the  enforcement  in  one  Member  State  of  a 
sentence  passed  in  another  Member  State  will  have  to  be  defined,  along  with  the 
conditions  of  mutual  information  on  convictions  given  through  a  European  register 
of  convictions  and  disqualifications  (“European  criminal  record”),  and  how 
account should be taken of convictions in other Member States, either to avoid new 
proceedings (the ne  bis in  idem rule) or to adjust the sentence passed (question of 
recidivism). 

Strengthen mutual trust by assuring all European citizens of a high-quality system of 
justice  based  on  common  values:  A  series  of  measures  to  ensure  mutual  trust 
between  national  judicial  authorities  should  cover:  the  definition  of  fundamental 
guarantees,  the  conditions  for  the  admissibility  of  evidence  and  measures  to 
strengthen the protection of victims. Improvements in the training of those working 
in the criminal justice systems and work on the evaluation of those systems will also 
help to strengthen mutual trust. 

Give the Union a coherent crime policy to fight effectively against serious crime in 
all  its  forms:  The  actions  undertaken  to  define  and  fix  the  minimum  thresholds  for 
penalties for certain offences will have to be deepened. As regards approximation of 
legislation it will be necessary to go further in certain areas. It will be vital to adopt 
the  institutional  mechanisms  making  it  possible  to  monitor  and  ensure  that  Union 
instruments are properly implemented12. 

The  new  Treaty  should  guarantee  the  possibility  of  building  a  coherent  criminal 
justice  policy,  whether  it  be  in  response  to  specific  criminal  phenomena  or  the 
extension of an existing Community policy13. 

Put Eurojust at the centre of European criminal policy: As the draft Constitutional 
Treaty  states,  the  mission  of  Eurojust  must  be  to  support  and  strengthen 
coordination  and  cooperation  between  the  national  authorities  responsible  for 
prosecutions  relating  to  serious  crime  affecting  several  Member  States.  Eurojust 
should  therefore  be  the  natural  means  for  national  authorities  to  extend  their 
activities  in  the  cross-border  cases.  Subject  to  review  by  the  Court  of  Justice, 

12 

13 

The  draft  Constitutional  Treaty,  by  incorporating  judicial  cooperation  in  criminal  matters  in  the 
Community framework, abolishes the specific instruments that are specific to the current third pillar and 
replaces them by European laws and framework laws, restores complete judicial review and reinstates 
the Commission’s full role as guardian of the Treaties. 
The  draft  Treaty  provides  for  a  single  legal  basis  to  govern  the  approximation  of  the  definitions  of 
offences and penalties regardless of the policy involved. 

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Eurojust should be able to guide the criminal response to offences that threaten the 
Union’s activities and policies. 

A European Public Prosecutor’s Office with specific responsibility for offences to 
the detriment of the Union’s financial interests, should be able to be created from 
Eurojust. 

These ambitious objectives can be achieved only if Europe has  an  institutional and 
legal framework in the criminal field that matches the issues at stake in the enlarged 
Europe.  The  reintroduction  of  the  unanimity  rule  for  provisions  that  the  draft 
Constitutional Treaty envisaged to be subject to qualified majority voting would be a 
retrograde  step  which  could  only  reduce  the  Union’s  capacity  to  meet  the 
challenges of the fight against organised crime and terrorism. 

2.9. 

Strengthen the efficacy of police and customs action 

In order to strengthen police and customs cooperation in the Union, the Commission 
has identified the need to take measures simultaneously at three levels: operational, 
decisional and legislative14. 

Experience has shown the need to increase the operational capacities of cooperation 
between  the  Member  States’  enforcement  authorities,  through  better  use  of  the 
cooperation  instruments  and  mechanisms  already  in  place.  At  Union  level,  thought 
must be given in particular to supplying information to and strengthening the role 
of Europol. 

To  show  that  there  is  a  real  commitment  to  the  fight  against  organised  crime  and 
terrorism,  bilateral  cooperation  between  Member  States  must  be  continued  but 
multilateral exchanges must also be built up. This exchange must include intelligence 
services. 

It  is  also  necessary  to  simplify  decision-making  mechanisms  by  encouraging 
qualified  majority  voting.  The  draft  Constitutional  Treaty  makes  provision  for  this, 
subject only to measures concerning operational cooperation. 

One of main innovations in the draft Constitutional Treaty is the establishment of a 
Standing  Committee  within  the  Council  to  promote  and  strengthen  operational 
cooperation  on  internal  security.  Accordingly,  the  role  of  the  Police  Chiefs’  Task 
Force might be reviewed, revitalized and developed in view of its privileged position 
in operational coordination. All the other actors here, particularly Europol, will also 
have to be associated. 

Similarly, care must be taken to encourage consistency between the operational and 
legislative aspects of Union action. And it seems indispensable: 

•  to establish a legal framework to improve information exchanges between the 
Member  States’  enforcement  services  and  to  control  their  access  to  the  various 
sources of information; 

14 

Communication “Stronger police and customs cooperation in the European Union”. 

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•  to give thought to the legal framework of Europol, to make it truly operational 
and convert it into a Union agency, financed from the Community budget. There 
will  have  to  be  greater  democratic  and  judicial  control  of  its  activities  to 
correspond to this greater effectiveness; 

•  to pay great attention to the training of police officers. CEPOL must guarantee 
the  European  dimension  of  the  programmes  at  national  training  institutes  and 
promote cooperation between them. 

To ensure the effectiveness of the measures adopted, the draft Constitutional Treaty 
makes it possible to establish the procedures for an evaluation of the implementation 
of  this  policy.  Thought  should  be  given  to  setting  up  “performance  agreements” 
between the main authorities concerned. 

Attention  must  also  be  paid  to  upgrading  international  cooperation  with  all  actors 
involved, such as for example Interpol. 

With  regard  more  specifically  to  customs  cooperation,  the  ratification  and 
implementation  of  the  Naples  II  Convention  and  the  Convention  on  the  Customs 
Information System (CIS) by all the Member States remain priorities.. Generally, it is 
important to implement the work programme concerning the customs cooperation 
strategy  currently  based  on  Title  VI  of  the  Union  Treaty,  adopted  by  the  JHA 
Council on 30 March 200415. 

2.10. 

Strengthen  action  to  prevent  and  combat  terrorism  and  specific  forms  of 
crime 

Prevention  and  the  fight  against  terrorism  will  unfortunately  have  to  retain  their 
priority status. The main lines of action identified by the European Council on 25 and 
26 March 2004 will have to be implemented. 

It is crucial to create a European framework to control the threat that serious crime 
and  terrorism  pose  for  society.  In  order  to  coordinate  and  exchange  strategic  and 
operational  information  efficiently,  The  Union  should  set  up  a  new  information 
exchange  mechanism  –  an  information  exchange  centre  –  as  proposed  by  the 
Commission at the European Council of 25 and 26 March 2004, with which Europol 
and Eurojust should be fully associated. 

Exchanges between national criminal intelligence systems should also be promoted. 
A  policy  on  intelligence  for  preventive  and  enforcement  purposes  should  be 
devised for the Union. This action must be accompanied by a legislative initiative 
on the treatment and protection of personal data used by police services. 

Under the European Security Strategy, it will be necessary to implement the action 
called  for  by  the  European  Council  on  25  and  26  March  2004  and  to  develop  a 
multidisciplinary  approach,  providing  a  coherent  interface  between  the  internal  and 
external dimensions of the various Union policies. 

15 

The  strategy  and  the  work  programme  follow  on  from  the  Council  Resolution  of  2.10.2003  on  a 
strategy for customs cooperation (OJ C 247, 15.10.203). 

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Moreover,  it  will  be  essential  to  monitor  and  support  the  proper  implementation  of 
existing legislative instruments,. In addition, new initiatives could be drawn up.With 
full  respect  for  fundamental  rights  and  data  protection,  the  potential  of  the  new 
large-scale  computer  systems  should  be  explored  to  contribute  in  particular  to 
fighting terrorism. 

The  existing  legal  possibilities,  such  as  joint  investigation  teams,  and  the  work  of 
Europol, in particular as regards information analysis, must be fully used. 

If  it  is  to  be  completely  effective,  the  fight  against  terrorism  must  be  handled  in 
conjunction with other forms of crime, and in  particular  organised  crime.  A  broad-
based  approach  is  necessary  to  improve  the  fight  against  these  phenomena,  in 
particular  by  combating  any  form  of  financing  of  terrorism.  There  is  a  particular 
need  for  greater  transparency  and  traceability  of  financial  transactions,  the  fight 
against financial crime remaining a priority. 

The  fight  against  serious  crime  also  involves  two  tracks  which  require  the  Union’s 
involvement: 

-  First,  the  development  of public-private  partnership  should  aim  to  combine  the 
expertise,  resources  and  information  available  to  the  private  sector  and  to  police 
services  in  order  to  fight  more  effectively  against,  for  example,  counterfeiting, 
piracy, cyber-crime and corruption. 

- Secondly, statistical work and the collection of information on the development of 
crime  and  public  perceptions  of  the  level  of  security,  should  be  improved,  in 
particular  through  a  harmonised  information  collection  system  which  is  structured 
and regular. 

With  regard  to  trafficking  in  human  beings,  particularly  women  and  children, 
preventive and enforcement action must continue to be combined. 

2.11. 

Stronger action for crime prevention 

As regards crime prevention, efforts must be made to make goods and services less 
vulnerable to crime. The crime-proofing of legislation must be an integral part of this 
effort. 

As  regards  the  prevention  of  general  crime,  five  fields  of  action  will  have  to  be 
prioritised: a more precise definition of the priority forms of crime; an inventory of 
good practice; a common methodology to implement and  evaluate practical  actions 
and allow standardised comparison between the States; and stronger monitoring and 
evaluation, and better comparability of statistics.  Crime prevention should continue 
and be supported by a financial instrument. 

2.12.  Develop multidisciplinary mobilisation to combat drugs 

Demand  reduction  must  be  favoured  and  there  must  be  a  tighter  link  between  the 
external dimension of the fight against drug trafficking and justice and home affairs 
policies. 

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The time has come to make changes in this field on the basis of experience gained 
with  the  2000-2004  Action  Plan.  The  policy  to  combat  drugs  must  seek  to  provide 
the public with a practical response. 

2.13.  Resolute external action 

Assessment  of  achievements  since  Tampere  and  the  initial  thinking  on  future 
priorities  reveal  that  the  Union’s  external  action  must  take  into  account  the  justice 
and  home  affaires  dimension  and  that  general  Union  activity  must  be  better 
coordinated. To ensure that the Union can speak with one voice without undermining 
our  common  priorities,  it  will  be  necessary  that  Member  States  support  Union 
activity and observe more solidarity and discipline in their bilateral relations. 

3. 

CONCLUSIONS 

Considerable  work  has  been  done  since  the  Tampere  European  Council,  even  if 
much still remains to be done to complete the area of freedom, security and justice. 
In a rapidly-changing world, the aspirations of citizens for full freedom of movement 
and action and their legitimate calls for strict respect of fundamental rights combine 
with substantial demands to live in an environment that ensures their security. In an 
enlarged European Union, the final adoption of the Constitutional Treaty and its 
rapid entry into force are becoming essential, in order to meet these expectations. 

Similarly, the new Treaty will fulfil the essential requirements for transparency and 
democratic  control  both  because  the  role  of  the  European  Parliament  as  co-
legislator  is  to  be  expanded  and  because  of  the  increased  role  of  national 
parliaments. The latter will be particularly attentive to the subsidiarity principle and 
will be able to play an effective role in the evaluation of the activities of Europol and 
Eurojust. Moreover, being informed systematically of work at European level, they 
will be able to take account of it in their national parliamentary activity. 

Union  action  must  continue  and  take  practical  form  in  a  second  European 
programme for the area of freedom, security and justice, with detailed priorities 
and  a  precise  timetable.  The  working  method  followed  at  Tampere  is  good  and 
should be preserved. The Commission can already undertake to continue in the future 
with its follow-up work through the regular Scoreboard. 

In addition the Commission intends to present an additional Communication within 
the context of the new  financial  perspective. The future financial  instruments will 
be  of  a  significant  total  amount-  and  will complement  the  existing  and  future  legal 
instruments, notably by strengthening the operational aspect of the policies in the 
field of freedom, security and justice. 

The European Council must preserve its essential guiding role in the definition of 
strategic  guidelines  and  the  planning  of  future  action  on  justice  and  home  affairs. 
This role will have to take shape in particular when the new programme comes up for 
adoption  and  then  for  mid-term  review.  The  future  programme  must  make  it 
possible  to  guarantee  all  the  benefits  that  go  with  the  new  area  that  the  enlarged 
Union  constitutes.  It  will  be  important  to  achieve  a  political  consensus  on  this 
programme with Parliament and the Council, during the second half of 2004. 

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There  must  be  a  public  debate  on  subjects  which  cover  fundamental  questions  for 
our societies and closely affect citizens’ daily life. The establishment of the area of 
freedom,  security  and  justice  is  a  major  political  objective  and  one  of  the  most 
important challenges that we have to take on together. The Union must continue to 
show the same degree of ambition and determination as it did for the completion of 
the internal market. 

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