Communication from the Commission to the Council and the European Parliament - Implementing The Hague Programme : the way forward
Date: 2006-06-28
Institutions: European Commission
Subjects: EU police cooperation, EU relations, area of freedom, security and justice, customs cooperation, fight against crime, free movement of persons, judicial cooperation in criminal matters in the EU, private international law, public safety

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.6.2006 
COM(2006) 331 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Implementing The Hague Programme: the way forward 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Implementing The Hague Programme: the way forward 

(Text with EEA relevance) 

1. 

INTRODUCTION 

The Hague Programme "Strengthening Freedom, Security and Justice in the European Union" 
was adopted  by the European  Council in November 2004. It reaffirmed the importance that 
the  European  Union  attaches  since  the  Tampere  European  Council  in  1999  to  the  area  of 
Freedom,  Security  and  Justice,  placing  it  high  among  the  Union’s  priorities  –  not  only 
because it is one of the Union’s fundamental objectives, but also, and above all, because it is 
at  the  heart  of  EU  citizens’  interests.  The  Commission  Communication  to  the  European 
Council  on  "A  Citizens'  Agenda  for  Europe”  of  10  May  2006  strongly  reaffirmed  this 
priority1. 

Since the end of 2004, the Member States and the EU Institutions have worked to ensure the 
implementation  of  the  Programme  in  accordance  with  the  Council  and  Commission  Action 
Plan adopted in June 2005.  

The  European  Council  stated  in  December  2004  that  "since  the  Programme  will  run  for  a 
period  during  which  the  Constitutional  Treaty  will  enter  into  force,  a  review  of  its 
implementation is considered to be useful. To that end, it invited the Commission to report in 
2006 "to the European Council on the progress made and to propose the necessary additions 
to the Programme".  

In the absence of the entry into force of the Constitutional Treaty, it is still necessary to draw 
up a first political assessment of progress made in implementing The Hague Programme and 
to  propose  the  necessary  adjustments.  The  present  Communication  and  the  parallel 
Communications  on  "Strengthening  Freedom,  Security  and  Justice  in  the  European  Union: 
report  on  the  implementation  of  The  Hague  Programme  for  the  year  2005"  (hereafter  "the 
Scoreboard plus") and on "The Evaluation of EU Policies on Freedom, Security and Justice" 
constitute the answer to the call made by the European Council.  

The  aim  of  this  comprehensive  package  is  thus  not  to  identify  new  priorities  compared  to 
those set out by the Hague Programme but mainly (1) to take stock of the progress made, (2) 
to assess the level of implementation at EU and national level and (3) to propose a thorough 
evaluation of results.  

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COM(2006) 211. 

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On the basis of the policy priorities identified for the implementation of Hague Programme 
in its Communication of 10 May 20052, the Commission has identified those areas in respect 
of which it believes it is necessary to take forward the political agenda of the Union on the 
basis of The Hague Programme.  

The  Commission  acknowledges  the  urgent  need  to  find  a  new  impetus  in  the  area  of 
Freedom, Security and Justice as part of an ambitious, policy-driven agenda for citizens  

In presenting this package of measures, the Commission wishes to stimulate and structure 
the discussion with the Member States and the other Institutions during the Finnish Council 
Presidency (July- December 2006) on  

(1) 

(2) 

new policy initiatives it considers necessary (see Chapter 2), other than those already 
in course of implementation under The Hague Programme, and  

as  requested  by  the  June  2006  European  Council3,  on  exploring  possible  ways  to 
improve  the  functioning  of  Freedom,  Security  and  Justice  policies  by  using  the 
possibilities  provided  for  in  the  current  Treaties,  without  pre-empting  the 
Constitutional Treaty (see Chapter 3). 

To  make  further  progress  in  the  establishment  of  an  area  of  Freedom,  Security  and  Justice, 
more  effective  transparent  and  accountable  decision-making  procedures  are  needed.  As 
demonstrated  by  the  "Scoreboard  plus",  which  for  the  first  time  gives  an  assessment  of 
implementation  of  EU  legislation  at  national  level,  adoption  of  legislative  proposals  at  EU 
level  is  extremely  lengthy,  and  in  certain  areas,  results  barely  reach  the  lowest  common 
denominator and fail to meet some of the initial objectives. 

2. 

IMPLEMENTING THE HAGUE PROGRAMME: A NEW IMPETUS TO STRENGTHEN THE 
AREA OF FREEDOM, SECURITY AND JUSTICE 

A  first  assessment  of  the  implementation  of  The  Hague  Programme  and  its  Action  Plan 
through  the  Scoreboard  plus,  presented  in  the  parallel  Communication  referred  to  above, 
enables  the  Commission  to  identify  those  areas  needing  attention  in  the  Union’s  work  and 
where further efforts are needed.  

On this basis, the Commission makes the following proposals for action and implementation 
before the expiry of The Hague Programme (2009).  

2.1. 

Fundamental rights and citizenship  

Fundamental rights are at the core of the Union's values. The Commission will focus its action 
on the respect and promotion of fundamental rights for all people and to develop the concept 
of EU citizenship. 

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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.  
Paragraph 10 of June 2006 European Council conclusions: "In the context of the review of the Hague 
Programme,  the  European  Council  calls  upon  the  incoming  Finnish  Presidency  to  explore,  in  close 
collaboration  with  the  Commission,  the  possibilities  of  improving  decision-making  and  action  in  the 
area of Freedom, Security and Justice on the basis of existing treaties". 

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Citizenship of the Union entails a number of crucial rights, including free movement within 
the Union and diplomatic and consular protection.  

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The following actions are envisaged:  

•  The Commission receives an increasing number of requests to take action against 
alleged violations of fundamental rights by the Member States. The Commission 
will  continue  to  work  to  monitor  and  promote  fundamental  rights  in  accordance 
with the EU Treaty and its 2002 Communication on Article 7 TEU4, which equip 
the Union institutions with the means of ensuring that all Member States respect 
the common values.  

•  The Commission will give utmost priority to ensure correct implementation by 
the  Member  States  of  the  EP  and  Council  Directive  2004/38/EC  on  the  right  of 
citizens of the Union to move and reside freely within the territory of the Member 
States, entered into force on 30 April 2006. 

•  It  is  important  to  develop  a  common  EU  knowledge  and  common  standards  on 
how  protecting  EU  citizens  who  need  help  in  a  third  country  in  which  their 
homeland is not represented. The Commission is willing to contribute to training 
activities  in  favour  of  EU  Member  States  officials.  This  might  include  training 
support in matters related to consular protection of EU citizens. 

•  In parallel, actions towards communication and information campaigns to EU 
citizens  on  their  right  to  diplomatic  and  consular  EU  protection  are  currently 
under preparation. 

•  The  updated  common  consular  guidelines  for  EU-Member  States’  missions  in 
third countries foresee for the first time a pragmatic support role of Commission 
delegations in providing logistics and staff in a consular crisis5. This reinforces the 
Member States’ capabilities in serving the citizen in need and will be developed 
further.  A  joint  report  by  the  Secretary-General/High  Representative  and  the 
Commission on closer consular cooperation among EU Member States, including 
mutual  consular  assistance  points  in  pre-identified  regions,  is  foreseen  in  the 
second half of 2006. 

•  Following  requests  voiced  by  Member  States  when  adopting  The  Hague 
Programme, the Commission will consider how to further develop the ideas (1) of 
creating "Euro-Consulates" activities to share common consular functions also for 
the benefit of EU citizens, and (2) of establishing a European consular code. 

2.2. 

Development of the second phase of asylum 

Much  work  is  needed  over  the  next  few  years  to  establish  a  Common  European  Asylum 
System  with  effective,  harmonised  procedures  which  respect  Europe’s  humanitarian 
tradition and the Union’s international obligations.  

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COM(2003) 606. 
Presidency report on "Reinforcing the Union's emergency and crisis response capacities", endorsed by 
the June 2006 European Council. 

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The following actions are envisaged:  

•  Evaluation  of  the  existing  legislative  framework.  By  the  end  of  2006,  the 
Commission  will  present  the  evaluation  of  the  Dublin  Regulation  and  of  the 
Reception Conditions Directive, while in 2008 the Qualification Directive will be 
evaluated. 

•  A Green paper on asylum policy, followed by a Policy Plan on Asylum policy 
in  2007,  will  detail  the  different  steps  of  the  second  phase  of  completion  of  the 
Common European Asylum System. 

•  Following the Communication adopted in February this year6, further action will 
be  taken  in  the  area  of  practical  cooperation  between  administrations  with  a 
view to achieving a convergence in the asylum systems of Member States, notably 
by the creation of an EU-wide database on country of origin information.  

2.3.  Migration Management 

A  global  approach  to  migration  management  implies  that  a  Common  Immigration  policy 
addressing  the  situation  of  legal  migrants  at  Union  level  is  developed  in  parallel  with 
measures  to  address  more  effectively  illegal  migration  and  to  enhance  the  fight  against 
migrant smuggling and trafficking in human beings, in particular women and children. 

The following actions are envisaged: 

•  Further to the policy plan on legal migration, the Commission intends to present 
proposals for a framework EP and Council Directive and four EP and Council 
Directives  for  specific  types  of  migrant  worker  (highly  skilled  workers, 
seasonal workers, intra-corporate transferees and paid trainees). 

•  Following  the  growth  in  illegal  immigration  from  West  and  North  Africa 
affecting, in the first instance, Italy, Spain, Malta, Greece and the Mediterranean 
region, the Commission is coordinating the implementation with Member States, 
EUROPOL,  FRONTEX  and  the  Joint  Research  Centre  of  the  priority  actions 
identified  by  the  Hampton  Court  Informal  Meeting  of  Heads  of  State  and 
Governments and December 2005 European Council. A progress report is planned 
to be issued by the end of 2006. 

•  Action  on  the  external  dimension  of  migration  will  be  further  strengthened. 
Migration issues must be firmly embedded in the Union’s external relations with 
countries  of  origin  and  transit,  as  part  of  a  global  approach  to  migration.  In 
particular,  migration  and  development  work  focus  on  reinforcing  the  positive 
linkages  between  these,  focussing  in  particular  on  issues  such  as  migrants' 
remittances, the role of diasporas, brain circulation and circular migration as well 
as mitigating the impact of brain drain on countries of origin. 

•  The  Commission  will  present  in  July  this  year  a  Communication  on  illegal 
immigration.  Increasing  mutual  trust  and  the  exchange  of  information  between 

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COM(2006) 67. 

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Member States, including on regularisations of illegal immigrants, improving the 
access  control  to  the  territory  and  combating  employment  of  illegally  staying 
third-country nationals will be addressed as priorities. 

•  Sustainable  legal  migration  policies  require  co-ordinated  integration  policies, 
tailored-made  for  short-term  stays  as  well  as  longer-term  settlement  issues  and 
problems arising in the second and third generations. Following the Commission's 
communication of 1 September 2005 and the Council’s conclusions of December 
2005, implementation of integration policies will be pursued. 

2.4. 

Integrated  management  of  external 
information systems 

frontiers  and 

interoperability  of 

An area in which people move freely calls for control of the access to the Union’s territory, 
by  means  of  an  integrated  management  system  for  external  borders,  a  common  visa  policy 
and the judicious use of new technologies, including biometric identifiers. 

The following actions are envisaged: 

•  Consideration  will  be  given  to  the  role  of  FRONTEX  in  coordinating  liaison 
operations in the field of migration between existing liaison networks in the third 
countries of departure and transit.  

•  The Commission will present in July this year a Proposal for an EP and Council 
Regulation  on  the  establishment,  the  powers  and  the  financing  of  "Rapid 
Reaction Teams" of national experts which, under the aegis of FRONTEX, will 
provide  technical  and  operational  assistance  to  Member  States  in  the  control 
and surveillance of external borders.  

•  In particular, the use of biometric data would make it possible to collect and store 
information on the entry/exit of third-country nationals into/from the Schengen 
area. The Commission is launching a study, the results of which will be available 
in June 2007, to assess the feasibility of an EU entry/exit information system, as 
well as the implementation of a "Trusted Traveller Programme" making it easier 
for bona fide travellers to cross the border. 

•  The idea of setting up a European register for travel documents issued to EU 

citizens will be explored. 

•  The  Commission  will  discuss  with  the  European  Parliament  and  the  Council  on 
how  to  work  forward  the  specific  proposals  contained  in  its  Communication  of 
November  2005  on  improved  effectiveness,  enhanced  interoperability  and 
synergies among European databases. On the basis of these discussions, an action 
plan will be presented in 2007. 

2.5. 

Follow-up  to  the  Mutual  Recognition  Programmes  (in  civil  and  criminal 
matters) 

In the field of civil and criminal law, the principle of mutual recognition will continue to be 
the  cornerstone  for  the  Union’s  policies.  Mutual  recognition  relies  on  mutual  trust  in  each 
other's legal and judicial systems. 

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The following actions are envisaged: 

•  Following  its  May  2005  Communication,  the  Commission  has  made  several 
legislative  proposals  to  enhance  the  implementation  of  the  principle  of  mutual 
recognition  in  criminal  matters  both  in  the  pre-trial  and  in  the  post-trial  phases. 
These  various  initiatives  now  should  be  rapidly  adopted  and  implemented. 
Mutual  confidence  needs  to  be  strengthened  by  laying  down  EU  wide  rules  on 
conflicts of jurisdiction, procedural guarantees, presumption of innocence and on 
minimum  standards  for  gathering  of  evidence,  on  one  hand,  and  by  concrete 
actions  to  improve  judicial  training  and  the  efficiency  of  justice  systems,  on  the 
other hand. 

•  A  study  will  be  presented  in  2007  covering  the  horizontal  problems  that  are 
encountered  in  the  negotiation  and  application  of  mutual  recognition  principle, 
and of the gaps in the present system of cooperation in criminal matters that can 
be addressed by new instruments. 

•  In  the  medium  term,  consideration  will  be  given  to  a  gradual  process  of 
consolidation  in  single  mutual  recognition  instruments  of  current  mutual  legal 
assistance mechanisms, in particular in relation to obtaining evidence in criminal 
law area. 

•  The  establishment  of  a  single  area  of  justice  in  civil  matters  is  essential  for 
business as well as citizens. A new political impetus should be given to the 2000 
programme  on  mutual  recognition  in  civil  matters  to  ensure  that  the  momentum 
built up since the entry into force of the Amsterdam treaty is maintained, leading 
to  the  completion  of  the  programme  as  foreseen  in  The  Hague  Action  Plan..  In 
particular  the  Commission  will  propose  the  necessary  legislative  measures  to 
complete  the  abolition  of  exequatur  of  civil  and  commercial  decisions,  and  will 
also  present  Green  Papers  on  improving  the  efficiency  of  the  enforcement  of 
judgments.  Moreover,  the  Commission  will  propose  several  new  instruments  in 
the  field  of  family  law  which  concerns  citizens  in  their  everyday  lives,  such  as 
successions and property rights of married and unmarried couples. 

•  Facilitating access to justice for citizens is a real challenge for the consolidation 
of  the  European  area  of  freedom,  security  and  justice.  As  a  first  step,  the 
Commission  will  propose  to  amend  the  Council  Decision  creating  the  European 
Judicial  Network  in  civil  matters  to  make  it  closer  to  citizens  and  legal 
practitioners and to improve further its efficiency. 

2.6. 

Access to information needed to combat terrorism and organised crime 

Information needed for the fight against terrorism and serious crime should cross the internal 
borders of the EU without obstacles. The processing of relevant information across the EU by 
competent  authorities  will  support  action  at  national  and  at  Union  level  to  improve  the 
capacity of the EU as a whole to prevent and combat terrorism and serious crime.  

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The Hague Programme invited the Commission to present legislation by the end of 2005 to 
implement  the  "principle  of  availability",  to  be  operational  on  1  January  20087.  The 
Commission  submitted  a  proposal  for  a  Council  Framework  Decision  on  the  principle  of 
availability in October 2005.  

Exchange of information between Member States in the field of criminal justice has to extend 
to  criminal  records.  The  current  system  based  on  the  European  Convention  on  Mutual 
Assistance in Criminal Matters of 1959 presents serious shortcomings. The Commission has 
already  presented  legislative  proposals  aiming  at  establishing  a  computerised  system  of 
exchange of information on criminal records, which would improve mutual understanding and 
facilitate the mutual knowledge of existing convictions within the EU. Financial support will 
be provided to the Member states to facilitate the networking of national criminal records. 

New initiatives are probably unnecessary at this stage. It is of paramount importance that the 
existing  (and  incoming)  legislative  proposals  presented  by  the  Commission  be  rapidly 
adopted  and  implemented,  with  a  view  to  ensuring  a  full  application  of  the  principle  of 
availability and effective development and implementation of the EU-wide criminal record 
system.  

The Commission firmly believes that, in parallel to progress on exchange of information, it is 
indispensable  to  move  forward  on  data  protection  in  the  area  of  police  and  judicial 
cooperation. The Commission considers that initiatives referred above must be accompanied 
by  a  legally  binding  legislation  on  data  protection,  ensuring  a  high  level  of  protection  of 
personal data in all the Member States. The Commission regrets the lack of progress on the 
proposal  which  it  put  forward  in  October  2005  and  considers  that  the  quick  adoption  of  its 
proposal by the Council is indispensable.  

2.7. 

Fight against terrorism and organised crime, including the future of Europol  

Terrorism and organised crime will remain a constant threat in the coming years. The Union 
will have to remain particularly vigilant in demonstrating its unique capacity to drive forward 
policies at European level, by building up knowledge and close contacts with all stakeholders, 
and by helping Member States and law enforcement and judicial authorities in their daily fight 
to meet this challenge.  

As  the  operational  cooperation  and  mutual  trust  between  Member  States  grows,  the 
Commission believes that it is time to develop an agreed Internal Security Strategy, which 
should  build  upon  the  ongoing  inter-institutional  work  in  the  area  of  counter-terrorism  and 
protection of critical infrastructures.  

The following actions are envisaged: 

•  The  Commission  will  present  soon  a  proposal  for  a  programme  on  critical 
infrastructure protection, building on the extensive consultation exercise it has 
engaged since 2005. Later this year, following the preliminary results of a study 
on  the  feasibility  of  the  critical  infrastructure  warning  information  network, 
the Commission will submit a proposal for a Council Decision on this matter. 

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The  principle  of  availability,  as  laid  out  in  the  Hague  Programme,  states  that  information  for  law 
enforcement  purposes  needed  by  the  authorities  of  one  Member  State  will  be  made  available  by  the 
authorities of another Member State, subject to certain conditions. 

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•  The  Commission  is  considering  amending  the  Council  Framework  Decision  on 
Terrorism  to  improve  the  definition  of  incitement  to  terrorism  and  to  make 
punishable the circulation of bomb-making expertise. 

•  The  Commission  intends  to  put  forward  a  Communication  on  bio-terrorism  by 

the end of this year.  

2.7.1.  The future of Europol  

Europol  exists  to  improve  the  effectiveness  and  co-operation  of  Member  States’  law 
enforcement  authorities  in  combating  terrorism  and  organised  crime  by  facilitating  the 
exchange  of  information  between  Member  States  and  by  collecting  and  analysing  this 
information. Europol’s added value continues to lie in its ability to support investigations by 
providing high quality analysis of criminal intelligence. 

The Commission believes that the Europol needs a more flexible legal basis, since this will 
ensure  that  political  decisions  taken  to  improve  its  functioning  can  be  implemented  without 
undue  delay.  It  will  also  be  necessary  to  improve  oversight  and  control  of  the  European 
Parliament  over  Europol’s  activities,  in  order  to  increase  transparency  and  democratic 
accountability,  whilst  ensuring  the  confidentiality  of  operational  information  and 
procedures. 

The following action is envisaged: 

•  The  Commission  is  considering  presenting  a  proposal  for  a  Council  Decision 
replacing  the  existing  Europol  Convention,  with  a  view  to  improving  its 
operational efficiency.  

2.8. 

Financial perspectives in the area of Freedom, Security and Justice 

One  of  the  essential  pre-conditions  for  achieving  the  policy  objectives  fixed  by  The  Hague 
Programme  is  to  match  these  objectives  with  adequate  financial  resources.  The  recent 
agreement on the Financial Perspectives has recognised this need by providing more funds to 
Freedom,  Security  and  Justice  policies.  In  2007  the  new  financial  Framework  Programmes 
will  be  operational.  They  will  play  a  strategic  role  in  assisting  the  Union  and  the  Member 
States.  

Enhanced financial support from the Community budget will serve to support a fair sharing 
of  collective  responsibilities  in  an  area  without  frontiers  as  concerns  asylum,  immigration 
and borders and operational cooperation (in particular joint patrol and joint return flights). In 
the  fight  against  terrorism  and  organised  crime  and  for  maintaining  an  area  of  justice,  EU 
funding  will  facilitate  further  the  emergence  of  common  approaches.  Member  States  are 
invited  to  fully  exploit  the  potential  ensured  by  the  new  financial  framework  by  presenting 
ambitious and accurate proposals for projects which demonstrate the added value of action at 
EU level.  

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2.9. 

External dimension of Freedom, Security and Justice  

In December 2005, the Justice and Home Affairs Council endorsed the first ever Strategy for 
the  external  dimension  of  Freedom,  Security  and  Justice8.  The  strategy  set  out  a  series  of 
thematic priorities as well as the delivery mechanisms. The Commission is now in the process 
of implementing the key elements of the strategy through, for instance, the Common Space 
on Freedom, Security and Justice with Russia, the revised action plan on Justice and Home 
Affairs with Ukraine as well as the European Neighbourhood Policy Action Plans with other 
countries, and not least, through constantly deepening cooperation with the US.  

Making progress on rule of law in our cooperation with third countries takes time. Therefore, 
the Commission and Member States should focus on implementation rather than renewing 
or  updating  the  EU's  strategy.  The  thematic  and  geographical  priorities  have  been  set  out 
clearly, and the strategy should now be applied effectively in order to deliver results. In the 
area  of  Freedom,  Security  and  Justice,  progress  can  only  be  made  through  the  active 
contribution  of  both  Member  States  and  the  Commission,  working  together  in  a  concerted 
manner.  The  preparation  of  the  action-oriented  papers  for  respectively  the  Western  Balkans 
and  drugs  from  Afghanistan  demonstrate  the  value  of  such  cooperation.  Based  on  the  work 
undertaken  since  late  2005,  the  Commission  will  provide  a  progress  report  by  December 
2006 recapitulating the application of the strategy. Other important instruments in the field of 
Freedom,  Security  and  Justice  with  external  dimension  are  readmission  and  visa  facilitation 
agreements,  so  far  successfully  concluded  with  key  EU  partner  countries,  e.g.  with  Russia. 
The Commission will continue work in this area. 

2.10. 

Implementation and evaluation of Freedom, Security and Justice policies 

Taking into account the mandate given to the Commission by The Hague Programme and its 
Action  Plan,  the  fragmented  situation  of  existing  monitoring  and  evaluation  mechanisms, 
and  the  need  for  extensive  information  to  be  transmitted  to  all  stakeholders  regarding  the 
implementation and results of policies, the Commission considers that the time has come to 
work  towards  setting  up  a  coherent  and  comprehensive  evaluation  mechanism  of  EU 
policies on Freedom, Security and Justice, in spirit of partnership with Member States and 
EU Institutions.  

Such  a  mechanism,  which  will  include  the  yearly  monitoring  of  implementation9  and 
evaluation of the results of the policies, is presented in the parallel Communication on "The 
Evaluation of EU Policies on Freedom, Security and Justice".  

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"Strategy  for  the  external  dimension  of  JHA:  Global  freedom,  security  and  justice",  drawing  on  the 
Commission's Communication COM(2005) 491, 12.10.2005. 
As detailed in the Communication on " Strengthening Freedom, Security and Justice in the European 
Union: report on the implementation of The Hague Programme for the year 2005", presented in parallel 
to the present Communication. 

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3. 

IMPROVING THE DECISION MAKING PROCESS IN THE AREA OF FREEDOM, SECURITY 
AND JUSTICE 

3.1. 

Facing recurrent difficulties in the area of Freedom, Security and Justice 

Freedom,  Security  and  Justice  policies  are  of  real  concern  and  relevance  for  our  fellow 
citizens, as recently shown by the debates under Plan D (for democracy, dialogue and debate) 
and  supported  by  opinion  polls.  European  citizens  want  the  EU  to  be  more  effective  in 
particular  in  the  fight  against  organised  crime  and  terrorism,  but  also  in  management  of 
migration flows and control of external borders. 

Despite this strong interest, progress is slow and the development of Freedom, Security and 
Justice policies at EU level faces recurrent difficulties leading to numerous blockages. The 
first  annual  follow-up  to  The  Hague  Programme,  presented  in  the  parallel  Communication, 
has proven that these difficulties are mainly due to the particularity of the decision making 
process.  

Decisions on police and judicial co-operation in criminal matters, in particular, still need 
unanimous agreement by all Member States. These matters are dealt with under a particular 
framework (Title VI TEU), which applies the so-called "third pillar" method, characterised 
by: 

•  specific  legislative  instruments  (Common  Positions,  Framework  Decisions, 

Decisions and Conventions) that complicate further its implementation; 

•  insufficient powers for the European Parliament in the legislative process;  

•  use  of  unanimity  that  often  leads  to  agreements  on  the  lowest  common 

denominator basis; 

•  a shared right of initiative with each of the 25 Member States that does not favour 
a  true  "European  dimension",  nor  the  accountability  of  the  Member  States' 
legislative initiatives, which are not submitted to ex-ante impact assessment, and 

•  a limited role of the Court of Justice (exclusion of infringement procedures and 
preliminary  rulings  subject  to  national  opt-in  –  consented  so  far  by  14  out  25 
Member States- and possibility to limit to the highest national jurisdictions). 

•  the  lack  of  formal  infringement  procedures  to  ensure  proper  transposition  and 

implementation. 

In fact, discussions in the Council have recently showed it is proving very difficult to move 
forward  in  the  EU  in  areas  such  as  mutual  recognition  in  criminal  matters  and  police 
cooperation. 

Last June the Justice and Home Affairs Council could eventually reach an agreement on the 
Commission  proposal  for  a  European  evidence  warrant  only  after  extremely  lengthy 
negotiations and on the basis of the lowest common denominator, which is not satisfactory not 
only for the Commission but also for most Member States and has a negative impact on the 
application of the principle of mutual recognition, which under the Tampere and The Hague 

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Programmes  represent  the  cornerstone  of  the  Union's  policies  in  the  area  of  judicial 
cooperation. 

No  progress  has  been  made  either  in  the  last  three  years  on  basic  minimum  standards  for 
procedural  rights  applicable  throughout  the  EU,  such  as  the  right  for  an  interpreter  when 
arrested.  Discussions  on  a  text  providing  for  defining  and  condemning  in  the  same  way 
throughout  Europe  offences  of  racism  and  xenophobia  are  equally  totally  blocked  and 
frozen for almost two years, even though there are recent signs that they could now restart.  

Finally,  discussions  have  not  progressed  on  a  Commission  proposal  intended  to  authorise 
further cross-border investigation and prosecution. 

Some such recurrent difficulties are also visible for the "communitaurised" Freedom, Security 
and Justice policies (Title IV TEC), where specificities remain regarding the competence of 
the Court of Justice for preliminary rulings (Article 68 TEC) and where legal migration and 
family law are still decided upon by unanimity. On legal migration, for example, discussions 
on the 2001 Commission proposal for a Directive on entry and stay of third country nationals 
for employment purposes were unsuccessful under the unanimity rule. The Commission has 
recently  revived  this  issue  through  a  Green  Paper  and  a  resulting  Action  Plan  presented  in 
December 2005, but is difficult today to predict where this debate will end still applying the 
unanimity rule in this area. 

Regarding the competence of the European Court of Justice, the risk exists that matters of 
high importance and sensitivity such as access to justice or asylum rights do not benefit from 
the same jurisdictional control or uniform application throughout Europe. 

3.2. 

Resolving current difficulties: the bridging clauses 

The Commission believes that the timing of the first review of implementation of The Hague 
Programme  is  an  opportune  moment  to  reactivate  and  stimulate  consideration  on  how  to 
in  the  EU  and  ensure  better  evaluation  and 
better  shape  the  decision-making 
implementation of Freedom, Security and Justice legislation. This needs to be done by making 
the best use of the possibilities offered by the current Treaties. 

The  Commission  considers  that  fully  implementing  the  current  Treaties  would  allow  for 
further  efficiency  and  coherence  in  areas  where  the  added  value  of  action  at  EU  level  is 
widely recognised and expressly requested by our citizens that, as recently confirmed by the 
results of the last Euro barometer, ask for more protection and security. 

Moreover, as stated in its Communication of 10 May 2006, it is the Commission's view that 
the  maximum  use  of  the  current  Treaties  will  set  in  place  the  conditions  necessary  for 
reaching  the  ambitious  goals  contained  in  The  Hague  Programme  and  allow  its  full 
implementation. The current Treaties provide for the possibility to overcome the difficulties 
mentioned in Chapter 3.1 by the use of the so-called "bridging clauses" contained in Articles 
42 TEU and 67(2), second indent, TEC. 

Article 42 TEU provides for the right of initiative of the Commission (or of a Member State) 
to propose that action in areas referred to under Article 29 TEU (fight against terrorism and 
crime through actions in the field of law enforcement and criminal matters) falls under 
title IV TEC and is subject to the same institutional framework as other "communitaurised" 
Freedom, Security and Justice policies. The decision on the use of Article 42 TEU is subject 

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to unanimity within the Council, after consulting the European Parliament, and adoption in 
accordance with Member States' constitutional requirements. 

Article 67(2), second indent, TEC allows the Council, acting unanimously after consultation 
of the European Parliament, to decide that legal migration becomes governed by co-decision 
procedure, ensuring therefore a proper democratic scrutiny by the European Parliament. 

Article 67(2), second indent, TEC requires the Council, acting unanimously after consultation 
of the European Parliament, to adapt the provisions of Article 68 EC relating to the powers of 
the Court of Justice; this should be done by deciding that preliminary ruling competence of 
the Court of Justice under "communitaurised" Freedom, Security and Justice policies be align 
to  the  one  provided  for  under  other  EC  policies,  ensuring  an  enhanced  role  of  the  Court  of 
Justice10. 

The Commission believes that the bridging clauses represent an appropriate tool at disposal 
of  the  Union  and  the  Member  States  to  reach  the  ambitious  goal  of  better  shaping  the 
decision-making in the area of Freedom, Security and Justice. 

The  real  added  value  of  the  application  of  the  bridging  clauses  would  be  to  apply  the 
"Community"  method  to  the  policies  in  this  area,  which  has  proven  to  ensure  more 
efficiency, more transparency and more accountability. The best example of the benefits 
of the "Community" method is the recent adoption by the European Parliament and Council 
of the Commission proposal for a Directive on retention of communication data, agreed upon 
only three months after the Commission proposal.  

By applying the "Community" method, the following advantages would be obtained: 

•  increasing the efficiency, the transparency and the accountability of the legislative 

procedures; 

•  generalising  the  Community  legislative  instruments  (Regulations,  Directives, 

Decisions under the current Treaties); 

•  acknowledging  the  legislative  co-decision  power  to  the  democratically  elected 

representatives of EU citizens through the European Parliament; 

•  guaranteeing  a  "European  dimension"  of  the  legislative  proposals  through  the 
right of initiative of the Commission and the  use  of effective  impact assessment 
tools;  

•  favouring  both  consensus  and  high  standard  achievements  through  the qualified 

majority vote;  

•  ensuring  a  proper  judicial  dialogue  with  national  jurisdiction  through  the 
preliminary  ruling  mechanism  and  monitoring  of  implementation  by  the 
Member States through the infringement procedure. 

10 

Given that, despite the expiration of the transitory period on 1 May 2004, the Council has not yet taken 
up work to fulfil its obligation to adapt the provisions of Article 68 EC, the Commission addresses to 
the  European  Parliament  and  the  Council,  in  parallel  to  the  present  communication,  a  specific 
Communication on that subject. 

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Moreover,  use  of  the  bridging  clauses  for  police  and  judicial  cooperation  matters  would 
certainly  be  critical  in  addressing  the  question  of  the  delimitation  between  first  and  third 
pillars,  which  is  far  from  being  hypothetic  as  recent  rulings  of  the  Court  of  Justice  (in  the 
environmental  crime  and  the  Passenger  Name  Record  cases)  clearly  show.  Dealing  with 
these  matters  under  a  single  legal  framework  would  certainly  lead  to  more  legal  certainty 
and efficiency. 

Article  42 TEU,  in particular,  allows for certain flexibility notably in terms of definition of 
the relevant voting conditions to be applied to the areas transferred from Title VI TEU to Title 
IV  TEC.  The  Commission  believes  that  reflection  and  discussion  should  be  launched  with 
Member  States  and  with  the  EU  Institutions  to  make  the  best  use  of  the  different  options 
offered by Article 42.  

4. 

CONCLUSIONS 

European citizens urge the EU to put in place the necessary measures to make Europe a safe 
place to live in. The Union must be able to respond rapidly, guaranteeing at same time that 
European citizens may exercise their individual freedoms.  

The Union and the Member States must respond together to this challenge because terrorism 
and  organised  crime  do  not  respect  borders  or  procedures.  Implementing  and  developing 
further The Hague Programme is a common goal, which imposes effective decision-making 
and clear political priorities. 

Identifying the next steps to move forward European integration in Freedom, Security and 
Justice  and  streamlining  decision-making  procedures  should  be  pursued  in  parallel.  The 
Commission  believes  it  is  represents  the  only  sustainable  way  forward  for  progress  in  this 
policy area.  

The Commission intends, on the basis of its assessment of the state of implementation of The 
Hague Programme, to launch a discussion in partnership with the other EU Institutions and 
the  Member  States  on  how  to  bring  forward  the  policy  agenda  in  a  way  to  address  the 
expectations of EU citizens and improve the functioning of the area of Freedom, Security and 
Justice  

On  the  basis  of  the  outcome  of  reflection  and  discussion  during  the  incoming  Finnish 
Council Presidency about the benefits of using the current Treaties, the Commission is ready 
to take initiatives under Article 42 TEU and Article 67(2), second indent, TEC11. 

11 

Without  prejudice  to  the  specific  initiative  taken  in  the  Commission’s  communication  referred  to  in 
footnote 6 above. 

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