Opinion of the European Economic and Social Committee on the  Communication from the Commission to the Council and the European Parliament: The Hague Programme: Ten priorities for the next five years — The Partnership for European renewal in the field of Freedom, Security and Justice (COM(2005) 184 final)
Date: 2005-12-15
Institutions: European Economic and Social Committee
Subjects: ESC opinion, EU migration policy, EU office or agency, EU police cooperation, European citizenship, admission of aliens, area of freedom, security and justice, fundamental rights, judicial cooperation in criminal matters in the EU, public safety

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Opinion of the European Economic and Social Committee on the ‘Communication from the
Commission to the Council and the European Parliament: The Hague Programme: Ten priorities
for the next five years — The Partnership for European renewal in the field of Freedom, Security
and Justice’

(COM(2005) 184 final)

(2006/C 65/22)

On 10 May 2005, the Commission decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for the Committee's
work on the subject, adopted its opinion on 14 November 2005. The rapporteur was Mr Pariza.

At its 422nd plenary session, held on 14 and 15 December 2005 (meeting of 15 December 2005), the
European Economic and Social Committee adopted the following opinion by 98 votes to two, with seven
abstentions.

1. Introduction

Convention on Human Rights, and the EU Charter of Funda-
mental Rights should form the basis of these policies.

1.1
The European Council of 4 and 5 November 2004
adopted the second multi-annual programme for the creation
of a common area of Freedom, Security and Justice in the Euro-
pean Union — the Hague Programme (1). The programme sets
out general and specific orientations for the next five years
(2005-2009) with regard to policies developing the area of
Freedom, Security and Justice (AFSJ).

The European Council

1.2
invited the European Commis-
sion to draw up an action plan in which the orientations set
out
in the Hague Programme were to be translated into
concrete actions. On 10 May 2005, the European Commission
published a communication entitled The Hague Programme: Ten
priorities for the next five years — The Partnership for European
renewal in the field of Freedom, Security and Justice (2), which sets
out strategic objectives for the next five years and includes a
timetable for the adoption of a package of policies and legisla-
tive initiatives in these areas.

2. Conclusions

2.3
The EESC believes that security policy should be effec-
tive, protecting citizens in a free and open society within a
framework of justice, under the rule of
law. The day that
disproportionate legislation is adopted in the name of the fight
against
terrorism, sacrificing human rights for the sake of
security, is the day we hand terrorists their first victory. Euro-
pean civil society should play a critical and active role in this.

The EESC wants active citizenship of

the European
2.4
Union to be developed. We propose a higher quality, more
open, egalitarian, inclusive citizenship, without discrimination.

It

is essential

2.5
the European Union establish a
common asylum procedure and a uniform status, based on the
Geneva Convention.

that

2.1
Five years after Tampere, the objectives have not been
achieved. The EU is not a common area of Freedom, Security
and Justice. Although the Hague Programme is lacking ambi-
tion, its objectives are very important.

2.6
The EU needs to draw up a common immigration
policy with harmonised laws, not only to prevent illegal immi-
gration and combat criminal networks trafficking in human
beings, but also to admit legal immigrants through transparent
and flexible legal procedures.

The creation of a common area of Freedom, Security
2.2
and Justice must strike the right balance between the three
dimensions. The Hague Programme does not maintain a proper
balance. Security policies should protect the values of freedom
and justice. The EESC believes that the protection of basic free-
doms and fundamental rights guaranteed by the European

(1) The Hague Programme: strengthening freedom, security and justice

in the European Union, Council, OJ C 53 of 3.3.2005.

(2) Communication from the Commission to the Council and the Euro-
pean Parliament: The Hague Programme: Ten priorities for the next
five years – The Partnership for European renewal in the field of
Freedom, Security and Justice COM(2005) 184 final, Brussels,
10.5.2005.

2.7
Immigrants and asylum seekers should be assured of fair
treatment, compliant with humanitarian law, the Charter of
Fundamental Rights and anti-discrimination law. Reception and
integration policies must be developed.

The Hague Programme should strengthen freedom,
2.8
security and justice and consolidate effectiveness,
legitimacy,
mutual trust, equality and proportionality; to this end, EU law
and all available institutional mechanisms should be used.

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2.9
It is essential to respond to the current judicial and insti-
tutional complexity of these policies. The persistence of this
complexity at intergovernmental
level (third pillar) limits the
effectiveness and scope of the Community method. The draft
Constitutional Treaty provides an effective and coherent
response to many of the problems of cooperation in matters of
freedom, security and justice.

3.4
It must be realised that there are major obstacles to
adopting common policies and harmonised standards on
matters of freedom, security and justice: legal systems, political
orientations and sometimes national interests all differ. Experi-
ence of European integration in other policy areas shows that
with a strong political will among Member States and clear
leadership from the Commission,
it is possible to overcome
these obstacles.

2.10
Although the draft Constitutional Treaty contains new
legal bases for the development of these policies, the current
Treaty contains useful instruments which should be utilised.

2.11
The European Area of Justice should be founded on
trust and the mutual recognition of court rulings. New legisla-
tive instruments are also needed.

2.12
All legislative measures relating to security should be
subject to thorough and regular evaluation, as well as demo-
cratic monitoring by the European Parliament and the Court of
Justice of the European Communities. Only in this way can a
real common area of Freedom, Security and Justice be estab-
lished.

None of

the objectives

2.13
in the Hague
Programme and in the Action Plan can be achieved without
sufficient funding. The European Commission has submitted
proposals for three framework programmes (April 2005); the
EESC is drafting opinions (3) on these.

set out

3. General comments

3.1
After Justice and Home Affairs were incorporated into
the Community system with the entry into force of the Treaty
(15 and 16
of Amsterdam, the Tampere European Council
October 1999) adopted the first multi-annual programme
relating to these policy areas — the Tampere Programme.

3.2
Five years later, substantial progress has been made
towards the creation of a common area of Freedom, Security
and Justice. According to the Council:
the foundation for a
common asylum and immigration policy have been laid, the harmoni-
sation of border controls have been prepared, police cooperation has
been improved, and the groundwork for judicial cooperation on the
basis of the principle of mutual recognition of judicial decisions and
judgements has been well advanced (4).

However,

the European Commission's most

3.3
recent
biannual report or ‘scoreboard’ assessing the progress made in
the first half of 2004 (5), suggests that the level of convergence
achieved between the different policy areas was less than
expected.

(3) See opinions SOC/210211212 (rapporteurs: Ms King, Ms Le Nouail

Marlière, Mr Cabra de Luna).

(4) The Hague Programme, op.cit. Introduction.
(5) Communication from the Commission to the Council and the Euro-
pean Parliament - Area of Freedom, Security and Justice: Assessment
of the Tampere programme and future orientations COM(2004)
401 final, Brussels, 2.6.2004.

3.5
The EESC finds that, overall, too little progress has been
made. Many of the specific objectives agreed upon in Tampere
have not been achieved, and many of the policies adopted have
been of a sub-standard quality.

3.6
The Hague Programme now has the difficult task of
consolidating and promoting the creation of a common area of
Freedom, Security and Justice. This presents wide-ranging and
complex challenges (6).

3.7
Unlike Tampere, the Hague Programme does not put
forward any innovative policies. The unambitious scope of the
programme is based on the need to more effectively implement
and evaluate existing policies relating to freedom, security and
justice.

3.8
Furthermore, there are no provisions for the instruments
needed to successfully overcome the obstacles that have thus
far prevented greater convergence of policies. The EESC
believes that due to the Hague Programme's lack of ambition, it
will be impossible to establish a consistent, high quality, broad
and effective legislative framework which strikes the right
balance between freedom, security and justice.

3.9
These obstacles continue to stem from the policies of
Member States, which lack effectiveness, solidarity, transpar-
ency, mutual
trust, proportionality and a balance between
freedom, security and justice.

the fact

The EESC welcomes

3.10
the European
Commission has made defence of and respect for fundamental
rights and citizenship the first of the ten priorities for the next
five years set out in its action plan for the development of an
area of Freedom, Security and Justice.

that

3.11 More positively, it should be stressed that alongside the
adoption of the Hague Programme, the decision was taken to
apply the co-decision procedure and qualified majority voting
to all Title IV measures, which enables, at least, the removal of
one of the most significant obstacles to date. However, we
regret that regular immigration has been excluded from this
measure.

(6) Denmark, Ireland and the United Kingdom negotiated special proto-
cols to the Treaty of Amsterdam, allowing them an opt-out from
the policies adopted under Title IV of the EC Treaty.

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In its specific orientations,

3.12
the Hague Programme
confuses aspects relating to ‘security’ with aspects relating to
‘freedom’. Policies directly relating to security clearly take
priority and interfere with aspects concerning freedom and
justice. This is the case for instance with initiatives based on
the introduction of biometrics systems and new technologies,
the interoperability of databases, greater control of internal and
external borders and more effectively fighting irregular immi-
gration, all of which are paradoxically included under the
heading ‘Strengthening Freedom’.

3.13
A comprehensive strengthening of freedom, security
and justice must rigorously respect the need for a fair balance
between the three dimensions, so as not to encroach on the
fundamental values (human rights and civil liberties) and demo-
cratic principles (rule of law) shared throughout the Union.
Freedom should not take second place to security. Some poli-
tical proposals only repeat a past error: sacrificing freedom for
the sake of improving security. History has shown us that it is
open and free societies that most effectively defend security.
The protection of fundamental human rights is at the heart of
the values that we Europeans share today. The day that dispro-
portionate legislation is adopted in the name of
the fight
against
terrorism, sacrificing human rights for the sake of
security, is the day we hand terrorists their first victory. It is the
values of freedom that give us the strength to face terrorists.
European policies should provide effective security and protec-
tion of fundamental rights and freedom.

3.14
This imbalance between Community policies is also
evident in the financial perspectives; security accounts for most
of the budget (7).

3.15
The Hague Programme should promote, strengthen
and consolidate effectiveness, legitimacy, mutual trust, equality
and proportionality and strike the right balance between
freedom, security and justice. It is essential to overcome the
current judicial and institutional complexity and give a firm
guarantee that security policies are subject to adequate demo-
cratic control by the European Parliament and to judicial super-
vision by the European Court of Justice in Luxembourg.

strikes the right balance in the European Union, since freedom,
security and justice are in the general interest of the society,
and thus of businesses, social partners and NGOS.

3.19
The period of uncertainty following the referendums in
France and the Netherlands is a new challenge to progress on
migration and asylum policies and all other issues addressed in
the Action Plan implementing the Hague Programme. Although
the draft Constitutional Treaty contains new legal bases for the
development of these policies, the Treaty currently in force
contains useful instruments which should be utilised.

4. Specific comments on strengthening freedom, security

and justice

4.1 Strengthening freedom

Respect for fundamental rights and civil

4.1.1
liberties is
one of the pillars of European integration and a principal objec-
tive of the Union. The creation of a common area of Freedom,
Security and Justice requires full respect for the dimension of
freedom comprising, amongst other key instruments, the Euro-
pean Convention for the Protection of Human Rights and
Fundamental Freedoms, the Charter of Fundamental Rights of
the European Union and the Geneva Convention relating to the
Status of Refugees.

that

The Hague Programme states

the European
4.1.2
Council welcomed the extension of the mandate of the Euro-
pean Monitoring Centre on Racism and Xenophobia towards a
Fundamental Rights Agency, to protect and promote funda-
mental rights. At the end of June 2005, the European Commis-
sion published a Proposal for a Regulation (8) establishing the
Agency. The Agency will play a key role in the respect of
freedom issues, providing Community institutions and Member
States with the means to ensure respect for fundamental rights
in the drawing up and implementation of Community policies.
Furthermore, the Agency will be an excellent point of contact
with civil society.

The promotion and strict protection of freedom is the
3.16
most effective way to confront the challenges facing the Euro-
pean Union in the 21st century, including the terrorist threat.

3.17
Human rights organisations and all civil society organi-
sations have a very important part to play in developing the
policies stemming from the Hague Programme.

3.18
The EESC continues to promote a policy of working
together with the social partners and civil society organisations
the Hague Programme
to ensure that

the development of

4.1.3 Ci ti ze nsh i p of th e Uni on

4.1.3.1
To develop a better, more active, more open, inclu-
sive and egalitarian European citizenship, the continuing obsta-
cles to the exercise of established rights must be eliminated,
and rights must be extended in certain respects.

It is still difficult to exercise some rights connected
4.1.3.2
with European citizenship, such as the right to free movement
within the EU or the right to vote or stand in local and Euro-
pean elections. Measures to eliminate these difficulties must be
developed. Furthermore, in some national legislation, the anti-
discrimination directives have not been properly transposed.

(7) See opinions SOC/210-211-212 (rapporteurs: Ms King, Ms Le

(8) See the Commission Communication COM(2005) 280 final, on

Nouail Marlière, Mr Cabra de Luna).

which the EESC is drawing up an opinion (SOC/216).

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Citizens of

the new Member States

4.1.3.3
should be
accorded all the established rights for citizenship of the Union
without delay. The temporary restriction on their rights is an
anomaly that should be removed as soon as possible. These
restrictions cause then numerous employment and social
problems and, by treating them as ‘second-class citizens’,
constitute unacceptable discrimination.

The EESC has proposed (9) that citizenship of the
4.1.3.4
Union be granted on the basis of a new criterion: that third-
country nationals who are long-term, stable residents of the
European Union be granted citizenship. Citizenship rights, in
particular political rights in municipal elections, are funda-
mental to the integration of migrants.

4.1.3.5
The integration of migrants is vital to the social
cohesion within Member States. Otherwise there is the risk of
social exclusion and alienation of these migrants and their chil-
dren and grandchildren who are born and raised within the EU.

4.1.4 A c ommon asylum are a (10)

The European Union has given itself five more years
4.1.4.1
to achieve an objective that was already set out five years ago:
to establish a common asylum procedure and a uniform status
for those who are granted asylum or subsidiary protection. Five
years seems long enough to achieve this objective, but it is
clear that some resistance still has to be overcome for the
necessary steps to be taken. Furthermore, while it is important
to make progress without delay, it is just as important for this
progress to be based on provisions which are consistent with
the fundamental rights relating to asylum. The system of quali-
fied majority voting in the Council and co-decision with the
Parliament will raise the quality of the legislation adopted.

The Action Plan provides for an evaluation in 2007
4.1.4.2
of the transposition and implementation of existing asylum-
related instruments. Such an evaluation is undoubtedly
becoming crucial, in light of the disparities currently appearing
in the transposition and implementation of the directives in
force (temporary protection; minimum standards for reception
conditions; Dublin II, etc.) The evaluation should focus on the
objective of ensuring that the implementation of the current
instruments is consistent with the obligations stemming from
international conventions on human rights and the 1951
Geneva Convention.

4.1.4.3 With regard to the new instruments proposed, the
EESC believes they represent positive steps towards the coordi-
nation of asylum practices between Member States, the devel-
opment of long-term resident status for refugees, the evaluation
of the implementation of the European Refugee Fund, etc.

4.1.4.4
However, we cannot expect asylum applications to
be dealt with outside the EU. The EESC agrees that the EU
should promote the improvement of humanitarian protection
standards in third countries, but the internationally recognised
right of people who need protection to enter the EU to submit
their
limited or
obstructed.

application for asylum should not be

4.1.5 L e g a l mi g r a ti on a nd a dmi ssi on p r oce du r e s

4.1.5.1
Five years have passed since the Tampere European
Council and yet the objective of giving the European Union a
common immigration policy has still not been achieved. Some
progress has been made — the Commission has drafted
numerous political and legislative proposals, while the Parlia-
ment has adopted numerous resolutions and initiatives — but
these have not been adequately discussed by the Council. The
EESC has worked actively with the Commission and the Parlia-
ment, and has drawn up a number of opinions aimed at contri-
buting to a real common policy and harmonised legislation.

4.1.5.2
must bring benefits for all concerned:

The European Union's common immigration policy

— so that those who come to the EU may find opportunities

and be treated fairly;

— for the European host societies;

— and for the development of the countries of origin.

4.1.5.3
In the years to come, Europeans will need new
economic migrants to contribute to social and economic devel-
opment (11). The demographic situation indicates
the
Lisbon Strategy could fall apart if we do not change immigra-
tion policies. We need active policies for the admission of both
highly skilled and less skilled workers. Although each Member
State has its own needs and characteristics, all the Member
State lack political and legislative instruments enabling new
migrants to enter legally, maintaining the balance of labour
markets.

that

It is incomprehensible that in the Council of the
4.1.5.4
European Union some governments have vetoed the Commis-
sion's legislative proposals and are perpetuating the restrictive
policies of old. Meanwhile,
the black economy and illegal
employment are growing, creating a real ‘pull factor’ for undo-
cumented migrants. In the absence of common European legis-
lation, the Member States are adopting new legislation with
very different political agendas, adding further barriers to
harmonisation. These different political agendas and legislative
disparities cause confusion and uncertainty amongst citizens.

(9) See opinion on Access to European Union citizenship, in OJ C 208

of 03/09/2003 (rapporteur: Mr Pariza Castaños).

(10) See the EESC opinions on asylum (drawn up since Tampere).

(11) See the opinion on the Commission Communication on Immigra-
tion, integration and employment (COM(2003) 336 final) in OJ C
80 of 30/03/2004 (rapporteur: Mr Pariza Castaños).

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4.1.5.5
The Council of the European Union should abandon
the unanimity requirement and adopt its decisions by qualified
majority and co-decision with the Parliament. This is the only
way to draft good legislation. This change must take place
now, before the study of new legislative proposals. The legisla-
tion adopted should have a high degree of harmonisation.
European legislation that takes a minimalist approach and dele-
gates key aspects to national law will serve to perpetuate the
current problems.

Those who come to Europe deserve to be treated
4.1.5.11
fairly. Community
include
admission legislation should
migrants' rights. Immigration legislation should comply with
the international conventions on human rights, the ILO stan-
dards and the EU Charter of Fundamental Rights. In accordance
with anti-discrimination directives, migrant workers should
have the same economic,
labour and social rights (including
social security) as Community workers.

For the new admission legislation, an overall, hori-
4.1.5.6
zontal
legisla-
legislative framework is preferable to sectoral
tion (12). The proposal for a Directive on admission drawn up
by the Commission and supported by the EESC, with a few
changes (13), remains a good legislative proposal. Additionally,
specific rules could be drawn up for sectoral issues and particu-
lar situations. If the Council of the European Union were to opt
for a sectoral approach, geared only towards the admission of
highly skilled migrants, it would not apply to much of migra-
tion, and would also be discriminatory. This option might be
easier for the Council, but it does not respond to European
needs.

4.1.5.7
The draft Constitutional Treaty sets the limits for
common legislation, including the right of Member States to
‘determine volumes of admission’ of migrants to their country.
This limit does not prevent a high degree of legislative harmo-
is an incentive for
nisation from being reached. Rather,
national management of economic migration to be dealt with
using transparent procedures. The power to issue work and
residence permits would belong to authorities in the Member
States, within the framework of Community legislation. Thus,
each Member State could decide, in cooperation with the social
partners, on what kind of migrants it requires: highly skilled or
less skilled, for the industrial sector, farming, construction or
services, or for all of these.

it

4.1.5.8
Economic immigration is strongly linked to labour
markets; it is therefore necessary to involve the social partners
sufficiently in the process of drawing up and managing these
policies.

Only when the European Union has common legis-
4.1.5.9
lation for the admission of third-country nationals for work
purposes, will
there be improved cooperation between all
Member States over the management of migratory flows and
more transparent procedures.

4.1.5.10
Admission procedures should display a twofold
approach: the economic needs test and a six-month to one-year
temporary permit for seeking work, which each Member State
would manage in cooperation with social partners.

(12) See opinion on the Green paper on an EU approach to managing
economic migration (COM(2004) 811 final). OJ C 286 of
17.11.2005 (rapporteur: Mr Pariza Castaños).

(13) See the EESC Opinion on the Directive on the conditions of entry
in OJ C 80 of 3.4.2002)

and residence (COM(2001) 386 final
(rapporteur: Mr Pariza Castaños).

4.1.5.12
The Directive on long-term resident status covers a
wider range of rights, relating to security of status and mobility
these people
within the EU. The EESC has proposed that
should also have citizenship rights. The Committee drew up an
own-initiative opinion addressed to the Convention, proposing
that EU citizenship be granted to third-country nationals
residing on a stable basis or with long-term resident status.

4.1.5.13
It is essential to strengthen cooperation with coun-
tries of origin, not only to prevent illegal migration, but also so
that migration can become a factor for the economic and
social development of these countries. The EESC agrees with
the words uttered last year in the European Parliament by the
UN Secretary-General, Kofi Annan, who proposed that
the
international community address the issue of migration using a
multilateral approach.

The EESC drew up an own-initiative opinion (14)
4.1.5.14
proposing that Member States sign the International Conven-
tion for Migrant Workers and their Families. This was adopted
by the UN General Assembly in 1990 and entered into force in
2003, but has not yet been ratified by EU Member States.

4.1.5.15
The common immigration policy desired by the
EESC goes further than admission legislation. It is necessary to
implement a Community method of coordination to improve:

— the fight against the black economy and illegal employ-

ment;

— border control and the fight against criminal networks traf-

ficking in human beings;

— integration policies, on which the EESC has drawn up

various proposals.

It is a mistake to believe that migrant workers will
4.1.5.16
remain in Europe as temporary guests. Some will return to
their home countries voluntarily, but others will establish resi-
dence on a long-term or stable basis. In 2002, the EESC orga-
nised a conference with a view to making integration a funda-
mental aspect of
the new European immigration policy.
Numerous experts, social partners and the largest NGOs of the
25 Member States all participated in the conference. In the
conference conclusions,
it was proposed that the European
Commission establish an integration programme.

(14) See the EESC Opinion on the International Convention on
Migrants, OJ C 302, 7.12.2004 (rapporteur: Mr Pariza Castaños).

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4.1.5.17
The EESC is delighted that the European Commis-
sion has proposed a European Framework on Integration, and
that objectives for integration are included in the Hague
Programme. It also supports the inclusion of a large budget for
integration policies in the 2007-2013 financial perspective.

Integration (15) is a two-way process between the
4.1.5.18
host society and immigrants. But it is governments, local and
regional authorities and the European Union who have the
political and budgetary instruments.

4.1.5.19
alia:

An integration programme should include,

inter

— initial welcome:

information and advice,

teaching of

language and customs;

— integration into the labour market with equal treatment.
The role of the social partners here is crucial, and therefore
the European social partners have been called upon to
incorporate this issue into the social dialogue agenda;

— access to education without discrimination;

— integration in cities, avoiding impoverished, segregationist
urban ghettoes. Local and regional authorities must make
new political commitments;

— access to healthcare and other public services with equal

treatment;

establishment of the Border Management Agency (16), the crea-
tion in the medium-term of a European system of border
guards and improved coordination of national border authori-
ties. The objective must be two-fold: greater effectiveness both
in the fight against criminal networks smuggling and trafficking
in human beings, and in providing the humanitarian attention
and fair treatment that people deserve.

4.1.6.2
The EESC fully supports the instruments established
by the European Union to combat the smuggling and traf-
ficking of human beings, particularly the Council Directive
defining the facilitation of illegal immigration (17), the Frame-
work Decision on combating trafficking in human beings (18)
and the Directive on the issue of residence permits for those
victims cooperating with the judicial authorities (19). While the
EESC has criticised certain aspects of these instruments, it has
supported their comprehensive approach.

However, to prevent illegal

immigration, action in
4.1.6.3
other areas is needed. It is essential that migrants are offered
legal, transparent and flexible admission procedures. We must
also fight the black economy and illegal employment, putting
an end to the exploitative working conditions often suffered by
many illegal immigrants.

It

is also necessary for the prevention of

illegal
4.1.6.4
immigration and the fight against trafficking in human beings
that cooperation with neighbouring and transit countries is
improved.

— the new European society is multicultural; cultural identity
segregationist or xenophobic

should not be used for
purposes.

4.2 Strengthening security

4.1.5.20
The anti-discrimination directives that have been
adopted are excellent judicial instruments, but do not solve all
the problems. Active policies and new commitments must be
made by civil society in order to promote social attitudes that
support
integration. The EESC will continue to encourage
dialogue between civil society organisations; to this end and in
the months ahead, we will draw up a new own-initiative
opinion promoting new commitments to integration by local
and regional authorities.

4.1.6 T h e fi g h t a g a i nst i lle g a l i mmi g r a t i on

4.1.6.1
The Hague Programme addresses the fight against
irregular immigration in the section on border checks. The
the
EESC

expressed

approval

has

its

of

(15) See the opinions on Immigration, integration and the role of civil
society organisations in OJ C 125 of 27.5.2002 (rapporteur:
Mr Pariza Castaños) and Immigration, integration and employment
in OJ C 80 of 30.3.2004 (rapporteur: Mr Pariza Castaños).

4.2.1
The Hague Programme states that ‘the security of the
European Union and its Member States has acquired a new
urgency’ in the light of the attacks in the USA (11 September
2001) and Spain (11 March 2004). The Programme proposes a
coordinated action that is more effective faced with common
cross-border problems, particularly in the field of security.

4.2.2
The European Security Strategy of 12 December
2003 (20), which set out the role and responsibility of the EU
within the new global security situation, identified terrorism as
one of this century's main threats. The Strategy also emphasised
the permanent link between internal and external aspects of
security, in a Europe with common external borders and the
free movement of people without internal borders.

(16) See opinion on the Agency in OJ C 108 of 30.4.2004 (rapporteur:

Mr Pariza Castaños).

(17) Council Directive 2002/90/EC of 28 November 2002.
(18) Council Framework Decision of 19 July 2002.
(19) Directive 2004/81/EC of 29 April 2004.
(20) See A Secure Europe in a Better World: European Security Strategy, Brus-
sels, 1 December 2003, Javier Solana, EU High Representative for
the Common Foreign and Security Policy.

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Terrorism attacks the very pillars of democracy and
4.2.3
the rule of law: citizens' human rights and civil
liberties —
including the right to life. In reality, concerted action by the EU
is vital. To ensure the full exercise of freedoms and rights, the
European Union should guarantee a high level of security.
According to Article 29 of the TEU, the Union should ‘provide
citizens with a high level of safety within an area of freedom, security
and justice’. No Member State can combat the phenomenon of
‘terrorism’ on its own. European cooperation and coordination
against crime and cross-border organised crime must be
strengthened through the establishment of a common strategy.

4.2.8
One of the biggest weaknesses of European coopera-
tion in the field of security is the fact that these policies remain
outside the Community framework and are drawn up mainly
according to the intergovernmental method (the third pillar of
the EU). The role of the European Union is therefore very
limited. This has had a series of adverse consequences, such as
a lack of both efficiency (mainly due to the unanimity require-
ment) and transparency in the decision-making process, and
the exclusion of the European Parliament and the European
Court of Justice. With regard to the Court of Justice's jurisdic-
tion in the third pillar, Member States would have to accept
this in a declaration to that effect (22).

4.2.4
The attacks of July 2005 in London have once more
highlighted one of the biggest challenges of our times: how to
prevent and combat terrorism effectively, whilst fully respecting
fundamental rights and civil liberties and strengthening democ-
racy and the rule of law.

4.2.5
On 13 July 2005 in an extraordinary session, the
Council of the European Union adopted the Declaration on the
European Union's response to the London bombings, in which
it stressed the need to accelerate the implementation of the EU
adopted on 21
Action Plan on Combating Terrorism,
September 2001. Many of the legislative initiatives proposed in
this Declaration have been criticised by the European Parlia-
ment, NGOs and civil society. These criticisms stem from
doubts over its compatibility with the principles of legitimacy,
proportionality and effectiveness (21).

There are many factors contributing to the ineffective-
4.2.6
ness of a common European Security Strategy: the ineffectual
judicial framework underlying the development of these poli-
cies; the exclusion of the European Parliament and the Euro-
pean Court of Justice; the complexity of the roots, causes and
modes of operation of international terrorism and organised
crime; some Member States'
lack of willingness to recognise
and study specifics; the absence of a common European/inter-
national definition of what constitutes terrorism; the lack of
mutual trust between law enforcement and judicial authorities
of Member States.

4.2.7
The implementation of security policies that do not
strike a proper balance with respect for human rights is an
error which weakens the effectiveness of
the fight against
terrorism.

(21) Amongst others, the proposal of the French Republic, Ireland, the
Kingdom of Sweden and the United Kingdom for a Draft Frame-
work Decision on the retention of data processed and stored in
connection with the provision of publicly available electronic
communications
services or data on public communications
investigation, detection
networks for the purpose of prevention,
and prosecution of crime and criminal offences including terrorism
(8958/2004 of 28 April 2004) for the detection, investigation and
prosecution of criminal offences, 2004/8958 of 28 April 2004.
The European Commission has presented a parallel proposal for a
Directive on the retention of data processed in connection with the
provision of public electronic communication services (COM(2005)
438 final, 21.9.2005), which offers more assurances than the inter-
governmental proposal and guarantees the involvement of
the
European Parliament.

4.2.9
A clear example of the fact that the dimensions of
‘freedom, security and justice’ continue to be developed within
a purely governmental ambit is the Treaty of Prüm (Schengen
III) of 27 May 2005, on stepping up cross-border cooperation,
particularly in the fight against terrorism, cross-border crime
and illegal immigration. This treaty was negotiated and adopted
exclusively by seven Member States (23). The decision-making
process was not transparent, despite the importance of the poli-
cies and themes being addressed (24).

leading to ‘less Europe’.

4.2.10
This type of solely intergovernmental cooperation
weakens the European project and the entire common area of
Freedom, Security and Justice,
It is
necessary to promote and ensure ‘more Europe’ in these policy
areas through the use of the Community method and the
appropriate institutional framework. Community arrangements
provide a more integrated, effective, comprehensive and consis-
tent approach and system with which to meet the challenges of
our time.

Involving the European Parliament in the decision-
4.2.11
Justice
making process and giving the European Court of
jurisdiction over these policies is vital to respecting
general
democratic values and the rule of law. There is a need for
parliamentary and judicial monitoring of all
legislative acts
relating to security adopted and proposed under the third pillar
of the EU, as well as the activities and operations of European
agencies (Europol, Eurojust, the European Police College —
CEPOL, the EU Police Chiefs Task Force, the European Border
Agency, etc.).

(22) See Article 35 of the TEU. To date, only the following 14 Member
States have accepted the Court of Justice's jurisdiction in matters
relating to the third pillar of the EU: Germany, Austria, Belgium,
Greece, Luxembourg,
the Netherlands, Sweden, Finland, Spain,
Portugal, Italy, France, the Czech Republic and Hungary.

(23) Belgium, Germany, Spain, France, Luxembourg, the Netherlands

and Austria.

(24) Inter alia: measures to prevent terrorist attacks, DNA databases, the
use of air marshals, cross-border assistance in connection with
major events, crises, disasters and serious accidents, and assistance
with repatriation of illegal immigrants.

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sections on freedom and justice. Thus

4.2.12
Security is the Hague Programme's central concern
and constitutes the main strategic objective for the next five
years in the AFSJ. Security has been incorporated into the
the
Programme's
following have been erroneously included under the heading
‘Strengthening freedom’: the fight against illegal immigration,
biometrics and information systems (development and synergy
of databases),
repatriation and readmission,
improved border control, visa policies, etc.

the policy of

4.2.13
Furthermore, the Hague Programme prioritises the
need to implement and assess the measures already in place
relating to freedom, security and justice more effectively and
appropriately (25). Before framing and promoting any policy
relating to one of these three fields, a study should be carried
out on the effectiveness, proportionality and legitimacy of these
measures, i.e. high-quality legislation is needed.

4.2.14
A clear and coherent legislative framework for the
full protection of personal information and judicial and parlia-
mentary monitoring is necessary. The European Commission's
proposal to allow their departments to check systematically,
regularly and thoroughly (through an impact assessment)
compliance with the Charter of Fundamental Rights in their
legislative proposals is very positive (26). However, this should
also be carried out
the measures
adopted by the Council. The balance between respect for the
right to privacy, protection of information (freedom) — Article
8 of the Convention for the Protection of Human Rights and
Fundamental Freedoms and Directive 95/46/EC (27) for example
— and security when sharing information between law enforce-
ment authorities and other security services should be respected
at all stages of decision-making and practical implementation.

for the final version of

4.2.15
Extending the remit of the European Union Agency
for Fundamental Rights to include the third pillar of the EU
(Title VI of the TEU) would be a key element in maintaining a
proper balance between freedom, security and justice in the
policies developed by the Union (28).

The Hague Programme accords great importance to a
4.2.16
series of measures relating to terrorism, mainly aimed at
strengthening the exchange of information about threats to
internal and external security between the intelligence and
security services of the Member States; the fight against the
financing of terrorism; the strategic analysis of the terrorist
threat by the intelligence and security services and Europol;
protection of critical infrastructures and consequence manage-
ment.

(25) Council Decision establishing a European Judicial Network in civil
and commercial matters, 2001/470/EC, 28 May 2001, OJ L 174,
27/6/2001.

(26) Communication from the Commission, Compliance with the
Charter of Fundamental Rights in Commission legislative proposals
rigorous monitoring,
- Methodology
COM(2005) 172 final of 27.04.2005.

systematic

and

for

4.2.17
One of the most innovative proposals made in the
Hague Programme, in the section on ‘Strengthening security’, is
the principle of availability of
information. This principle
marks a new approach to improving the cross-border exchange
of law enforcement information in the EU, based on enabling a
law enforcement officer of one Member State to obtain from
another Member State all the information he needs to carry out
his investigation (29). The exact content, the real
impact, the
scope and the conditions of use of this revolutionary principle
are not yet clear. For it to work, a high level of trust between
the law enforcement authorities of
the respective Member
States will be needed. The lack of such trust has been one of
the biggest obstacles to European cooperation thus far. Coop-
eration between the European Union agencies, institutions and
actors dealing with freedom, security and justice must be
strengthened. Furthermore,
judicial monitoring of the opera-
tions and activities stemming from the principle of availability
should be ensured. The EESC supports the European Commis-
sion proposal on the protection of personal data processed in
the framework of police and judicial cooperation in criminal
matters (30).

4.2.18
The EESC calls for appropriate cooperation between
European agencies in matters of freedom, security and justice.
The Hague Programme calls for stronger practical cooperation
and coordination at a national level between law enforcement,
judicial and customs authorities as well as between these autho-
rities and Europol. Member States need to promote Europol as
a European agency and enable it
to play a decisive role,
together with Eurojust, in the fight against organised crime and
terrorism. It is unacceptable that the Protocols amending the
Europol Convention have still not been ratified or implemented
by all Member States. This is especially urgent if Europol is to
receive the support and resources needed to function effectively
as a cornerstone of European law enforcement cooperation.
Before redefining Europol's remit, the Member States must be
convinced of its benefits and the need to cooperate with it
fully. Furthermore,
from 1
January 2006, Europol will replace its annual European Union
crime situation reports with ‘threat assessments’ on serious
forms of organised crime. This increase in the practical rele-
vance of the role played by Europol should be accompanied by
a comprehensive democratic assessment of its activities. The
European Parliament and the national parliaments, along with
the European Court of Justice, should play a central role in the
democratic supervision and judicial monitoring of its activities.

the Programme indicates

that

(27) Directive 95/46/EC of the European Parliament and of the Council
of 24 October 1995 on the protection of individuals with regard
to the processing of personal data and on the free movement of
such data, OJ L 281 of 23 October 1995.

(28) Proposal for a Council decision empowering the European Union
Agency for Fundamental Rights to pursue its activities in areas
referred to in Title VI of
the Treaty on European Union,
COM(2005) 280 final, 30 June 2005, 2005/0125/CNS.

(29) On 12 October 2005,

the European Commission submitted a
Proposal for a Council Framework Decision on the exchange of
information under the principle of availability. COM(2005) 490
final, 12.10.2005.

(30) Council Framework Decision on the protection of personal data
processed in the framework of police and judicial cooperation in
criminal matters, COM(2005) 475, 4.10.2005.

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4.2.19
Another series of issues that have taken clear priority
within the political agenda are those relating to biometrics and
information systems. The incompatibility of the majority of
these measures with the principles of legitimacy, proportion-
ality and effectiveness has been regularly criticised by the Euro-
pean Parliament's Committee on Civil Liberties,
Justice and
Home Affairs (31) and by human rights organisations. The lack
of adequate safeguards and effective means of legal redress rein-
forces these arguments. Despite the criticisms of these instru-
ments, the Declaration on the European Union's response to
the London bombings, adopted on 13 July 2005 in an extraor-
dinary session, has highlighted the need to adopt
them
urgently (32).

4.2.20
The Hague Programme makes setting up arrange-
ments for the assessment of existing policies a clear priority.
Before adopting these initiatives it is necessary to carry out a
detailed and independent study of their effectiveness, added
value, proportionality and legitimacy (compliance with human
rights and civil liberties). The fight against terrorism is no justi-
fication for drafting a policy that could cause irreparable
damage to the protection of
freedom and democracy, and
consequently lead to more insecurity for all.

Regarding measures to combat

4.2.21
the financing of
terrorism and money laundering by criminal organisations,
what is needed is a more focused approach and the transposi-
tion of the legislative acts which facilitate more effective moni-
toring of suspicious financial flows that could be funding crim-
inal activities, particularly as part of the fight against money
laundering (33).

4.2.22
The European Commission recently proposed a code
of good practice for preventing the use of NGOs to finance
criminal organisations. The EESC is pleased that the Commis-
sion has launched a consultation process with civil society and
NGOs on this topic, but is concerned by the disturbing link
drawn by the Commission between NGOs and terrorism, since
it creates confusion and leads to unfair preconceptions. NGOs
and organised civil society play a central role in the fight
against terrorism and organised crime (34).

Ireland,

(31) Report on the initiative by the French Republic,

the
Kingdom of Sweden and the United Kingdom for a Draft Frame-
work Decision on the retention of data processed and stored in
connection with the provision of publicly available electronic
services or data on public communications
communications
networks for the purpose of prevention,
investigation, detection
and prosecution of crime and criminal offences including terrorism
(8958/2004 – C6-0198/2004 – 2004/0813(CNS), Committee on
Civil Liberties,
Justice and Home Affairs, European Parliament,
Rapporteur: Alexander Nuno Alvaro, 31.5.2005.

4.2.23
In accordance with and as an essential complement
to the European Security Strategy, and in line with the priority
given to the development of a coherent external dimension to
the security policy, the Hague Programme sets out the develop-
ment of
integrated and coordinated EU crisis-management
arrangements for crises with cross-border effects, to be imple-
mented by 1 July 2006. These arrangements should include the
assessment Member States' capabilities, stockpiling,
training,
joint exercises and operational plans for civilian crisis manage-
ment. By the end of 2005, the European Commission will
submit a Decision creating a secure general rapid alert system
(ARGUS) and a Commission Crisis Centre to coordinate
existing alert systems, as well as a Proposal creating a Critical
Infrastructure Warning Information Network.

4.2.24
The EESC believes that the EU needs a new, efficient,
effective, legitimate and proportional approach to the Common
Security Strategy. Different forms of terrorism require different
solutions and instruments tailored to the nature of the crime.

4.2.25
Furthermore, we need to study the many roots of the
violent radicalisation of vulnerable groups, and terrorist recruit-
ment methods in order to prevent
their proliferation. This
should go hand in hand with promotion of and political
commitment to an ongoing and open dialogue between reli-
gions and cultures, combating intolerance, racism, xenophobia
and violent extremism.

4.2.26
The Commission should study the possibility of
including terrorism in those crimes which come under the
jurisdiction of the International Criminal Court.

(32) These proposals, which constitute a development of the Schengen
acquis, include: the improvement of interoperability and synergy
between the databases created by the second generation Schengen
Information System (SIS II), the Visa Information System (VIS) and
EURODAC; the integration of biometric identifiers in travel docu-
ments, visas, residence permits and information systems; the reten-
tion of data processed in connection with the provision of public
electronic communication services for the detection, investigation
and prosecution of terrorist offences; the use of Air Passengers'
Data (PNR) for aviation security by the USA, Canada and Australia;
the mutual consultation of DNA and fingerprint databases, etc.
(33) EESC Opinion on the Proposal for a Directive on the prevention of
the use of the financial system for the purpose of money laun-
dering, including terrorist financing, COM(2004) 448 final. OJ C
267 of 27.10.2005 (rapporteur: Mr Simpson).

(34) See the opinion of the Section for Employment, Social Affairs and
Citizenship on the Proposal for a Council Decision establishing
the specific Programme Prevention, Preparedness and Conse-
quence Management of Terrorism, for the Period 2007-2013.
General Programme Security and Safeguarding Liberties SOC
(212), Rapporteur Mr Cabra de Luna, Brussels, 14 December 2005.

4.3 Strengthening justice

4.3.1
In line with the philosophy put forward in the Conclu-
sions of the Tampere European Council in 1999, the Hague
Programme gives priority to creating a common European
Area of Justice founded on the principle of mutual recognition
of judicial decisions and access to justice.

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In a number of areas (35), it has become evident that
4.3.2
the development of mutual trust between the different judicial
authorities and systems is necessary. It is one of the major
preconditions for more far-reaching judicial cooperation in
criminal and civil matters. Judicial authorities and all bodies
involved in legal proceedings should consider the decisions of
other Member States' authorities as equivalent to their own.
Neither judicial competence and quality, nor the right to a fair
trial, should be questioned. However, a lack of trust, the differ-
ences between Member States' legal systems in both criminal
and civil matters, and the lack of a full and reciprocal knowl-
edge of each others' systems still obstructs the development of
a cross-border approach in these policies and the strengthening
of judicial cooperation at a European level.

legal

The Hague Programme proposes the creation of a
4.3.3
‘European judicial culture’ based on the inherent diversity of
national
the
programme calls for greater efforts to facilitate both access to
justice and judicial cooperation. In addition, mutual trust (36)
should be based on the certainty that all European citizens
have access to a high quality judicial system (37).

and traditions.

Furthermore,

systems

The spirit of the Hague Programme is generally less
4.3.4
ambitious
in
than the multi-annual programme set out
Tampere. Instead of offering numerous new measures and legal
proposals, priority is given to establishing a system of objective
and impartial evaluation and implementing existing measures
in the field of justice, while respecting the independence of the
judiciary.

4.3.5
In addition to the lack of mutual trust between the
Member States' judicial authorities, another of the most signifi-
cant obstacles to judicial cooperation in criminal matters is the
fact that this comes under the third pillar of the EU, and there-
fore falls outside Community jurisdiction (Community method).
Hence, the EU's role is somewhat limited. This has had a series
of negative effects, such as a lack of efficiency and transpar-
ency, the exclusion of the European Parliament from the legis-
lative process; in addition, the European Court of Justice does
not have overall jurisdiction. Under the third pillar, Member
States must accept the jurisdiction of the Court to give a ruling
on the interpretation and validity of the policies developed,
through a declaration to this effect.

4.3.6 With regard to judicial
cooperation in criminal
matters, priority has clearly been given to measures aimed at
enforcing this principle (security) at the expense of all protec-
rights at a European level
tion of minimum procedural

(35) See Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (OJ L 302 19.10.1992
pp. 1-50).

(36) The Hague Programme, op. cit. 1, paragraph 3.2. Confidence-

building and mutual trust.

(37) In the Action Plan implementing the Programme, the European
Commission states that ‘the Union must envisage not only rules on
jurisdiction, recognition and conflict of
laws, but also measures which
creating
build confidence and mutual
minimum procedural standards and ensuring high standards of quality of
justice systems, in particular as regards fairness and respect for the rights
of defence’.

trust among Member States,

(freedom). A good example of this imbalance between freedom
and security is the European arrest warrant, which represents
the first step, within the field of criminal law, towards devel-
judicial deci-
oping the principle of mutual recognition of
sions (38). Despite the direct impact of this ‘Euro-warrant’, three
years after its adoption there is still no parallel legislative frame-
work protecting the procedural rights of suspects and defen-
dants in criminal proceedings in the EU.

regards procedural

In view of the existence of this legislative gap, in April
4.3.7
2004 the European Commission submitted a Proposal for a
Council Framework Decision on certain procedural rights in
criminal proceedings throughout the European Union (2004/
328). The Decision provides for common minimum standards
rights applying in all proceedings
as
throughout the EU aiming to establish the guilt or innocence
of a person suspected of having committed a criminal offence
or to decide on the outcome following a guilty plea in respect
of a criminal charge. This also includes any appeal resulting
from these proceedings (39). Although many criticisms may be
levelled regarding the limitations that this Decision imposes on
procedural rights, its adoption would strengthen mutual trust
and the protection of citizens' fundamental rights,
including
their right to a fair trial. The obstacles to achieving a political
agreement within the Council are proving immense. It is unac-
ceptable that Member States' representatives have not come to
an agreement on this initiative (40). However, special care
should be taken not to regard the urgent need to reach an
agreement as justification for reducing still further the level of
protection afforded suspects and defendants in legal proceed-
ings in criminal matters as part of the package of rights set out
in the proposal.

4.3.8
The European arrest warrant is also a good example of
the lack of mutual trust and the judicial complexity that often
plagues the EU at a time of judicial cooperation in criminal and
civil matters. While the Framework Decision has been under-
going the arduous process of transposition in the majority of
Member States,
into
the acts transposing the Euro-warrant
law have been challenged before the constitutional
national
courts in Germany and Poland due to its alleged incompatibility
with their respective constitutional provisions. The Constitu-
tional Court of the Federal Republic of Germany (Bundesverfas-
sungsgericht)
finally declared in its judgement of 18 July
2005 (41) that the law transposing the Euro-warrant into the
German legal system was void because it
infringed upon
German constitutional guarantees since there is no possibility
of challenging the judicial decision that grants extradition.

(38) Council Framework Decision on the European arrest warrant and
the surrender procedures between Member States, of 13 June 2002,
2002/584/JHA, OJ L 190, 18.7.2002, p. 1.

(39) Proposal for a Council Framework Decision on certain procedural
rights in criminal proceedings throughout the European Union
COM(2004) 328 final, 28.4.2004.

(40) The Proposal includes the following rights: access to legal advice,
access to free interpretation and translation, ensuring that persons
who are not capable of understanding or following the proceedings
receive appropriate attention,
to communicate with
consular authorities in the case of foreign suspects and notifying
suspected persons of their rights (by giving them a written ‘Letter
of Rights’), Articles 2-16 of the Proposal.

the right

(41) Judgement of 18 July 2005, 2 BvR 2236/04, Bundesverfassungsger-

icht.

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4.3.9
The European Commission's Proposal for a Council
Framework Decision on the European Evidence Warrant also
forms part of the complex puzzle that constitutes a system for
judicial cooperation in the EU (42). The objective of this Deci-
sion would be to replace current mutual assistance arrange-
ments with the principle of mutual recognition. The initiative
provides for the possibility of issuing a ‘European Warrant’
with a view to obtaining objects, documents and data for use
in criminal judicial proceedings. This Proposal has been openly
criticised and labelled premature, due to the absence of a
parallel legislative framework offering effective legal protection
of fundamental rights.

The lack of ambition displayed by the Hague
4.3.10
Programme with regard to the justice dimension could be
remedied through the recognition of the European Court of
Justice's general jurisdiction over these political areas that are
such sensitive issues for Member States. The Court of Justice
has generally taken an innovative and proactive position on the
interpretation and development of European policies. With
specific regard to law enforcement and judicial cooperation in
criminal matters, we should point to one of the Court's most
recent and significant judgements — the Pupino case C-105/03
of 16 June 2005 (43).

4.3.11 With regard to judicial cooperation in civil matters,
the Hague Programme reiterates the importance of borders
between countries no longer constituting an obstacle to the

Brussels, 15 December 2005.

settlement of civil

law matters or to the bringing of court
proceedings and the enforcement of decisions in civil matters.
It is necessary to eliminate legal and judicial obstacles in litiga-
tion in civil and family matters with cross-border implications,
to ensure the protection and exercise of citizens' rights. The
Programme encourages
the continuation of work on the
conflict of laws regarding non-contractual obligations (Rome II)
and contractual obligations (Rome I), a European payment
order and instruments concerning alternative dispute resolution
and concerning small claims.

4.3.12
Strengthening and reinforcing cooperation through
mutual recognition of procedural rights and family and inheri-
tance law also features in the priorities for the next five years.
However, this is an area where the diversity of legal traditions
and cultures hinders real and solid progress towards a common
area of justice. Therefore, it is of particular importance to study
in detail the different measures that could promote mutual
trust and the idea of a common legal culture in the EU (44).

that

The Hague Programme states

4.3.13
‘the effective
combating of cross-border organised and other serious crime
and terrorism requires the cooperation and coordination of
investigations and, where possible, concentrated prosecutions
by Eurojust, in cooperation with Europol’. The Council should
adopt the European law on Eurojust, taking account of all tasks
referred to the body. The relationship (cooperation) between
Eurojust and Europol should also be clarified.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

(42) Proposal

for a Council Framework Decision on the European
Evidence Warrant for obtaining objects, documents and data for
use in proceedings in criminal matters COM/2003/0688 final, 14
November 2003, CNS 2003/0270.

(43) The reference for a preliminary ruling concerned the interpretation
of various articles of the Framework Decision 2001/220/JHA of 15
March 2001 on the standing of victims in criminal proceedings.
The judgement was presented in the context of criminal proceed-
ings against Mrs Pupino, a nursery school teacher in Italy, charged
with inflicting injuries on pupils aged less than five years. The
Pupino judgement represents a revolutionary step in the construc-
tion of an area of Freedom, Security and Justice, since it is the first
time that the Court of Justice has recognised openly the direct
effect of Framework Decisions and that the binding character of
such Decisions places on national courts an obligation to interpret
national law in conformity with Community law. Furthermore, the
Court stated that ‘It would be difficult for the Union to carry out its task
effectively if the principle of loyal cooperation, requiring in particular that
Member States take all appropriate measures, whether general or particu-
lar, to ensure fulfilment of their obligations under European Union law,
were not also binding in the area of police and judicial cooperation in
criminal matters, which is moreover entirely based on cooperation between
the Member States’. The relationship between (and compatibility of)
this judgement by the Court of Justice and the judgement by the
German Constitutional Court annulling the legislation transposing
the European arrest warrant is open to interpretation.

(44) Opinion of the European Economic and Social Committee on the
‘Proposal for a Council Decision establishing a European Judicial
Network in civil and commercial matters’
(OJ C 139, 11 May
2001) and Opinion of
the European Economic and Social
Committee on the ‘Initiative of the Federal Republic of Germany
with a view to adopting a Council Regulation on cooperation
between the courts of the Member States in the taking of evidence
in civil and commercial matters’ (OJ C 139, 11 May 2001).