Communication from the Commission to the Council and the European Parliament - Report on the implementation of the Hague programme for 2005 {SEC(2006) 813} {SEC(2006) 814}
Date: 2006-06-28
Institutions: European Commission
Subjects: EU migration policy, EU visa policy, European judicial area, area of freedom, security and justice, citizens' Europe, disclosure of information, integration of migrants, report, right of asylum, terrorism

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.6.2006 
COM(2006) 333 final 

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Report on the implementation of the Hague programme for 2005  

{SEC(2006) 813} 
{SEC(2006) 814} 

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COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE 
EUROPEAN PARLIAMENT 

Report on the implementation of the Hague programme for 2005  

1. 

2. 

3. 

1. 

4. 

This  Communication  is  in  response  to  the  Council’s  call  on  the  Commission  to 
submit an annual report on the implementation of the Hague programme and action 
plan  (“scoreboard”)1  and  is  the  first  practical  instance  for  2005.  The  methodology 
selected will be followed in the years’ annual reports for the next four years. 

As with the Tampere scoreboard, the point is initially to monitor the adoption of the 
measures provided for in the Hague programme, including those involving the drugs 
action plan, the strategy on the external aspects of the area of freedom, security and 
justice,  and  the  action  plan  on  the  fight  against  terrorism,  which  supplement  the 
Hague action plan, in accordance with the set timetable. All the measures planned for 
2005  are  therefore reviewed in  this communication.  The  measures programmed  for 
2006  and  subsequent  years  will  be  examined  in  future  annual  reports  (Part  I  and 
Annex 1). 

In  addition  to  this  monitoring  of  the  adoption  process,  for  the  first  time  as  part  of 
such  an  exercise  for  Justice,  Freedom  and  Security  (“JFS”)  policies,  this 
communication looks into the national implementation of these policies (Part II and 
Annex 2). 

MONITORING  OF  THE  ADOPTION  OF  MEASURES  SCHEDULED  FOR  2005  UNDER  THE 
HAGUE PROGRAMME  

The table annexed (1) gives the state of play on each measure scheduled for 2005 or 
on a regular/ongoing basis in the Hague action plan. A broadly positive assessment 
can be reached from the following tables, even though progress was not equivalent in 
all areas. 

1 

The Hague programme: strengthening freedom, security and justice in the European Union (OJ C 53, 
3.3.2005,  p.  1)  and  Council  and  Commission  action  plan  implementing  the  Hague  programme  on 
strengthening freedom, security and justice in the European Union (OJ C 198, 12.8.2005, p. 1). 

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General State of Play

21,74%

0,87%

Achieved

Delayed

Postponed to 2006

Not relevant anymore

12,17%

65,22%

State of play per policy

100%

90%

80%

70%

60%

50%

40%

30%

20%

10%

0%

Visa policy, incl. the development of the VIS
Respect for & active promotion of fund. rights 
Prevention of and fight against organised crime
Border manag., biometrics, info.systems & visa policy
Integration of third country nationals
Asylum, migration and border policy
Judicial cooperation in criminal matters
Management of crisis within the EU
Legal migration incl. admission procedures
Confidence building and mutual trust
Citizenship of the Union 
European strategy on drugs 
Ext. dimension of asylum and migration
Judicial cooperation in civil matters
Fight against illegal immigration
Sharing of info.among law enforcement & jud.authoritie...
External relations 
General crime prevention
Common european asylum system
Police and customs cooperation

Terrorism

Achieved

Delayed

Postponed to 2006

Not Relevant Anymore

1.1. 

General guidelines 

1.1.1.  Respect and protection of fundamental rights 

5. 

Performance  here  is  generally  satisfactory.  Most  of  the  actions  scheduled  for  2005 
have  been  carried  out,  or  are  being  carried  out  in  2006,  except  for  a  proposal  for 
Union  accession  to  the  Convention  for  the  protection  of  human  rights  and 
fundamental  freedoms,  which  is  predicated  on  the  entry  into  force  of  the 
Constitution.  The  proposals  related  to  an  overall  agreement  on  the  financial 
framework 2007-2013 were adopted as planned by the Commission2, and follow-up 
depends on the developments linked to the overall agreement. 

2 

Proposals  for  specific  programmes  on  "citizenship  and  fundamental  rights",  "combating  violence 
(Daphne)" and "preventing drug consumption and inform the public". 

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6. 

7. 

8. 

The Commission proposal to extend the mandate of the European Monitoring Centre 
on  Racism  and  Xenophobia  and  to  create  a  European  Union  Fundamental  Rights 
Agency  is  a  substantial  achievement,  of  the  utmost  importance  under  the  Hague 
programme. 

Adoption of the Communication on the protection of the rights of the child was 
postponed  to  July  2006  because  of  the  need  for  intensive  preparatory  work  and  to 
ensure that all the various interests involved are fully taken into account. 

As regards data protection, the Commission proposal for a Framework Decision in 
the context of police and judicial cooperation in criminal matters will supplement the 
existing  legal  framework.  It  is  the  essential  flanking  measure  for  the  proposals  to 
implement the principle of availability and to improve law cross-border exchange of 
information between the enforcement services of the Member States. 

1.1.2.  European Strategy on drugs 

9. 

As provide by the Hague action plan, the Union established a drugs strategy 2005-
2012 in December 2004 and a European Union drugs action plan (2005-2008) in 
June  2005,  establishing  specific  priorities  for  all  stakeholders  and  a  detailed 
timetable of implementation, with evaluation tools and practical indicators for each 
of  the  eighty  or  so  proposed  actions.  The  plan  assigns  the  responsibility  for 
monitoring  and  evaluation  to  the  Commission,  in  cooperation  with  the  European 
Monitoring Centre for Drugs and Drug Addition and Europol. The first annual report 
on the implementation of the action plan will be presented in autumn 2006. 

1.1.3.  External relations 

10. 

In  December  2005,  in  accordance  with  the  timetable  in  the  action  plan,  the  Union 
established a strategy for the external dimension of the area of freedom, security 
and  justice  with  the  aim,  in  particular,  of  promoting  the  rule  of  law,  stability  and 
security outside the European Union. 

1.2. 

Strengthening freedom 

1.2.1.  Union citizenship 

11. 

12. 

Here,  the  Hague  programme  gives  priority  to  the  implementation  of  Directive 
2004/38/EC on the right of citizens of the Union and their family members to move 
and reside freely within the territory of the Member States, which will be the subject 
of a later evaluation, since its transposal deadline has only just expired. 

The  reports  on  the  application  of  Directives  on  the  right  of  residence  for 
pensioners,  students  and  inactive  persons  and  on  voting  at  European  Parliament 
elections are being finalised. 

1.2.2.  Asylum, migration and border policy 

13. 

To improve the coordination of national policies and boost cooperation and regular 
information  exchanges  between  the  Member  States  and  between  them  and  the 
Commission,  the  Commission  has  presented  a  proposal  on  the  establishment  of  a 

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mutual information system concerning Member States’ measures in the areas of 
asylum and immigration.  

14. 

Substantial progress has been achieved in the crucial field of information gathering 
to improve the analysis of the phenomenon of migration. On 28 November 2005 the 
Commission  adopted  the  Green  Paper  on  the  future  of  the  European  migration 
network to provoke reactions from interested parties, and at the same time presented 
a  proposal  for  a  Regulation  on  Community  statistics  on  migration  and 
international protection, now under discussion. 

1.2.3.  A common European asylum system 

15. 

16. 

17. 

There are mixed results here. 

The adoption of the Directive on minimum standards on procedures in Member 
States  for  granting  and  withdrawing  refugee  status  on  1  December  2005,  after 
more than four years of discussions, completed the first phase of development of an 
asylum policy. In the future, such measures will in theory no longer be subject to the 
unanimity rule but will be adopted by the procedure provided for by Article 251 EC3. 

The Commission has begun monitoring the evaluation of the first phase instruments, 
but  had  to  postpone  to  2006  the  presentation  of  a  proposal  concerning  long-term 
residence  status  for  the  beneficiaries  of  international  protection  until  the  second 
phase  of  development  of  a  common  European  asylum  system.  At  the  beginning  of 
2006  the  Commission  also  presented  its  communication  on  the  setting  up  of  the 
structures needed for cooperation between Member States. 

18. 

It was not possible to conduct the evaluation of the European Refugee Fund (ERF 
I) in 2005 as planned, and it had to be held over for 2006.  

1.2.4.  Legal migration, including admission procedures 

19. 

20. 

The 2005 timetable was fully adhered to.  

In December 2005, on the basis of the results of the public consultation on the Green 
Paper  on  economic  migration,  the  Commission  presented  a  Policy  Plan  on  legal 
immigration with a series of operational and legislative measures to be implemented 
between  2006  and  2009,  covering  the  conditions  for  admission  and  residence,  the 
distribution and dissemination of information, integration measures and measures to 
be set up in cooperation with countries of origin.  

1.2.5. 

Integration of third-country nationals  

21. 

The Communication of 1 September 2005 on a "A Common Agenda for integration: 
Framework  for  the  integration  of  third-country  nationals  in  the  European 

3 

In accordance with the first indent of Article 67(5), which provides for the changeover to that procedure 
after the first phase. In general terms, moreover, the Council Decision of 22 December 2004 providing 
for certain areas covered by Title IV of Part Three of the EC Treaty to be governed by the procedure 
laid down in Article 251 of that Treaty, as required by the Hague programme, provides for a general 
changeover to the adoption procedure provided for by Article 251 for policies in the field of asylum, 
immigration and borders, except as regards legal immigration. 

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Union",  establishes  common  guiding  principles  to  underpin  a  coherent  European 
framework as regards integration4. This framework, approved by the JHA Council of 
December 2005, will serve as a basis for future EU initiatives. 

1.2.6.  Fight against illegal immigration 

22. 

23. 

24. 

25. 

26. 

In terms of partnerships with third countries, the Commission Decision on the format 
for  report  on  the  activities  of  immigration  liaison  officers  networks  and  on  the 
situation  in  the  host  country  in  matters  relating  to  illegal  immigration,  adopted  in 
September 2005, will make a helpful contribution to the management of immigration 
liaison networks in relevant third countries. 

The annual report on the common policy on illegal migration scheduled for 2005 
will  be  presented  in  summer  2006  as  an  annex  to  the  future  Commission 
communication on future priorities in this respect. 

The  secure  web-based  Information  and  Coordination  Network  for  Member  States’ 
migration  management  services  (ICONET)  is  a  valuable  management  tool;  the 
Commission  will  organise  training  and  awareness-raising  courses  for  the  Member 
States’ contact points to make it fully operational. 

All  the  scheduled  measures  for  the  establishment  of  an  effective  removal  and 
repatriation policy based on common standards and on closer cooperation and mutual 
technical  assistance  were  accomplished.  The  Commission  presented  a  legislative 
proposal  concerning  return  procedures.  Preparatory  actions  for  financial 
support for the management of returns were launched. 

Lastly, after the entry into force of the readmission agreements with Macao, Hong 
Kong and Sri Lanka, negotiations with Russia were concluded in October 2005, and 
with Albania on the EU side in November 2005. Negotiations continue with Ukraine, 
Turkey, Morocco and Pakistan.  

1.2.7.  External dimension of asylum and migration 

27. 

28. 

29. 

4 

There were significant developments in 2005.  

Regarding cooperation with third countries in managing migration and asylum, 
the  Union agreed on operational  conclusions  on  the  management  of  migration  with 
third  countries  and  external  relations.  On  the  basis  of  Commission  proposals,  the 
December  2005  European  Council  adopted  an  ambitious  agenda  for  enhanced 
cooperation  between  the  Member  States  with  the  Africa  and  Mediterranean 
countries.  The  Commission  is  called  on  to  coordinate  the  implementation  of  these 
international 
the  Member  States  and 
priority  actions 
organisations. It is to inform the European Council at the end of 2006. 

in  cooperation  with 

The  Commission  proposed  a  framework  for  the  development  of  EU  regional 
protection programmes which was welcomed by the Member States. But it was not 
possible to launch the first pilot programmes in Tanzania and  the new  independent 

These include: promotion of fundamental rights, non-discrimination and equal opportunities, for which 
EU legislation provides a solid framework. 

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countries until 2006 on account of the time needed to publish the call for proposals 
under the AENEAS programme. 

1.2.8.  Border management, biometrics, information systems and visa policy 

30. 

31. 

32. 

33. 

34. 

There was substantial progress here too. 

Regarding  the  removal  of  checks  on  persons  at  internal  borders,  pending  the 
evaluation  of  the  implementation  of  the  acquis  not  related  to  the  Schengen 
Information  System  (SIS  II)  in  the  new  Member  States,  scheduled  for  2006,  the 
Commission  submitted,  as  envisaged,  a  proposal  on  SIS  II  legal  instruments  in 
accordance with the planned timetable. 

Regarding  the  management  of  external  borders  following  the  establishment  of  the 
External Borders Agency (FRONTEX) on 1 May 2005, new proposals in response to 
the  evaluation  of  its  operating  procedures  are  not  expected  before  2007.  The 
Commission already has, however, confirmed its intention of presenting a proposal 
to  establish  teams  of  national  experts  who  can  quickly  provide  technical  and 
operational assistance to Member States requesting it. 

The Schengen acquis (SIS) became partially applicable in the United Kingdom on 
22 December 2004. The Council Decision on the implementation of part of the SIS 
by the United Kingdom will be adopted after finalisation of the necessary technical 
amendments in that Member State. 

The adoption of the Commission communication relating to interoperability between 
SIS  II,  the  Visa  Information  System  (VIS)  and  EURODAC  on  24  November  2005 
was a significant step towards a coherent approach and the adoption of harmonised 
solutions  concerning  biometric  identifiers  and  data  in  the  EU.  Similarly, 
operational conclusions were adopted in December in preparation for the adoption of 
minimum  standards  applicable  to  national  identity  cards.  On  the  other  hand,  the 
proposal  amending  the  Common  Consular  Instructions  concerning  standards  and 
procedures for taking biometric data was be presented only in 2006 as discussions on 
the necessary preconditions are still in progress. 

1.2.9.  Visa policy, including the development of the Visa Information System (VIS) 

35. 

36. 

37. 

A  number  of  priority  measures  under  the  Hague  programme  have  been  or  will  be 
adopted later than planned, in 2006. 

Examples include the Commission proposal on the amendments needed to improve 
the visa policy and create common visa application centres and the draft amendment 
of the common consular instructions as regards visa rights. 

But  progress  was  made  on  transit,  with  the  presentation  of  the  Commission 
proposal, and on the regime of local border traffic, where political agreement was 
reached at first reading in February 2006. 

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1.3. 

Strengthening security 

1.3.1.  Terrorism:  sharing  of  information  among  law  enforcement  and  judicial  authorities 

while striking the right balance between privacy and security 

38. 

39. 

40. 

41. 

42. 

The  fact  that  the  Directive  on  the  retention  of  data  generated  or  processed  in 
connection  with  the  provision  of  publicly  available  electronic  communications 
services or of public communications networks and amending Directive 2002/58/EC 
was  adopted  on  21  February  2006,  only  five  months  after  the  presentation  of  the 
Commission  proposal,  following  the  agreement  reached  at  first  reading  between 
Parliament  and  the  Council,  was  an  inter-institutional  success  symbolising  the 
Union’s political will. 

Most of the actions on the implementation of the principle of availability scheduled 
for 2005 were accomplished. The Commission presented a proposal on exchange of 
information under the establishment of the principle of availability , with a parallel 
proposal on appropriate guarantees and rights of effective remedies for the transfer of 
personal  data  processed  in  the  framework  of  police  and  judicial  cooperation  in 
criminal  matters,  already  mentioned5.  Following  the  presentation  of  a  general 
proposal  on  the  principle  of  availability,  the  adoption  of  the  proposal  specifically 
concerning DNA was postponed to 2006. An agreement was reached on the Swedish 
initiative on simplifying the exchange of information and intelligence between law-
enforcement authorities of the Member States in December 2005. The Commission 
presented a proposal giving law-enforcement services access to VIS. 

Concerning  the  exchange  of  data  on  air  passenger  name  records  (PNR),  the 
Commission  adopted  on  16  June  2006  two  initiatives  to  put  a  legally  sound 
framework  in  place  for  the  transfer  of  PNR  data  to  the  United  States.  These 
initiatives are the first European answers to correct the legal basis for the Agreement 
with the US that was struck down by the European Court of Justice on 30 May 2006. 

The  Union  made  efforts  to  continue  with  the  adoption  of  an  overall  approach  to 
combating  terrorism  in  line  with  the  schedule.  The  Commission  adopted  the 
financing decision for the pilot project on the fight against terrorism, which provides 
among other things for the establishment of an information and crisis centre in DG 
JLS.  It  presented  proposals  aiming  to  improve  the  safe  storage  and  transport  of 
explosives and guarantee the traceability of industrial and chemical precursors. And 
a strategy as regards radicalisation and recruitment was agreed in December 2005. 

At the same time, since all the Member States failed to complete the full and correct 
transposal  of  the  Framework  Decision  on  terrorism  within  the  time  allowed,  it  was 
not  possible  to  launch  the  review  and  adaptation  of  it  with  the  planned  second 
implementation report.  

1.3.2.  Prevention of and fight against organised crime 

43. 

The  Commission  communication  developing  a  strategic  concept  on  tackling 
organised  crime  is  a  flagship  measure  adopted  on  schedule,  but  many  of  the 

5 

Paragraph 8. 

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measures to improve knowledge about organised and serious crime and to strengthen 
the collection and analysis of information had to be postponed to 2006. 

44. 

45. 

The Council delayed the adoption of the legislative mechanism relating to the fight 
against counterfeiting.  

On the other hand, the plan to develop common standards, practices and mechanisms 
to prevent trafficking in human beings was adopted on schedule.  

1.3.3.  Police and customs cooperation 

46. 

Efforts  to  give  Europol  the  means  of  playing  a  central  role  in  the  fight  against 
serious  (organised)  crime  continued  with  ongoing  discussions  in  the  JHA  Council. 
Together  with  the  amendments  of  the  decision  establishing  the  European  Police 
College  (CEPOL),  the  discussions  on  the  definition  of  the  role  of  the  security 
committee  (COSI)  and  the  coordination  to  be  established  between  the  various 
internal security agencies (and services), they are evidence of the will to give a new 
impetus to the operational dimension of police cooperation.  

1.3.4.  Crisis management in the European Union 

47. 

On 17 November 2005 the Commission issued a Green Paper on the protection of 
critical infrastructures. A legislative proposal, comprising the creation of a critical 
infrastructures  early  warning  information  network  (CIWIN)  will  follow  in  2006,  to 
take account of reactions to the Green Paper. 

1.3.5.  General crime prevention 

48. 

Following internal reflection on the organisation of the European Crime Prevention 
Network  (ECPN)  in  2005,  an  initiative  to  reinforce  and  professionalise  it  will  be 
presented in 2006. 

1.4. 

Strengthening justice 

1.4.1.  Confidence building and mutual trust 

49. 

Following  discussions  with  the  various  interested  actors  in  autumn  2005,  the 
Commission will present a communication on judicial training in the EU in 2006. 
The  programme  of  judicial  exchanges  will  continue  in  the  context  of  a  preparatory 
action in 2006, before being incorporated into the criminal justice component of the 
framework programme on justice and fundamental rights. 

1.4.2. 

Judicial cooperation in criminal matters 

50. 

The  timetable  for  measures  expected  from  the  Commission  for  the  continuation  of 
the  implementation  of  the  mutual  recognition  principle in  2005  was  adhered  to. 
Examples  include  the  communication  on  mutual  recognition,  which  renews  the 
general  context,  the  legislative  proposals  on  taking  account  of  convictions  in  the 
course of new criminal proceedings and the organisation and content of exchanges of 
information extracted from the criminal record, or the reports on the implementation 
of the Framework Decision on the European Arrest Warrant. 

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51. 

52. 

Major  delays,  however,  sadly  arose  with  the  adoption  of  two  flagship  measures: 
political  agreement  on  the  Framework  Decision  on  the  evidence  warrant  was 
reached only in June 2006, and the one relating to certain procedural rights is still 
under  discussion.  Neither  of  them  was  adopted  in  2005  as  planned  in  the  Hague 
programme. 

As  regards  harmonisation,  the  Green  Paper  on  conflicts  of  jurisdiction  and  the  ne 
bis  in  idem  principle  was  indeed  adopted  in  December  2005,  thus  launching  the 
debate to evaluate the need for Union action, but the Green Paper on the presumption 
of  innocence  was  deferred.  So  was  the  second  report  on  the  implementation  of  the 
Framework  Decision  on  the  status  of  victims  in  criminal  proceedings,  the  Member 
States having failed to supply sufficient information. 

1.4.3. 

Judicial cooperation in civil matters 

53. 

The  achievements  in  the  area  of  judicial  cooperation  in  civil  matters  in  2005  were 
quite remarkable, since all the actions scheduled to be taken were taken. A particular 
example is mutual recognition, where new developments are on the way in the years 
to come, in particular in family law, following the adoption of the Green Papers on 
succession and on conflicts of law and jurisdiction in divorce matters, or the proposal 
for  a  Regulation  on  maintenance  obligations,  which  the  Commission  would  like  to 
see adopted by the co-decision procedure. 

2. 

MONITORING NATIONAL TRANSPOSAL 

2.1.  Methodology 

54. 

55. 

This exercise concerns first of all the legislative instruments that  require transposal 
by  the  Member  States  –  Directives  and  Framework  Decisions.  The  average 
transposal  deadline  is  such  that  it  is  not  yet  possible  to  monitor  the  instruments 
provided for by the Hague action plan, since at the time of writing no one of them is 
due  to  be  implemented  yet6.  For  the  purposes  of  this  2005  report,  however,  it  is 
worth  analysing  and  evaluating  the  Member  States’  implementation  of  JFS 
instruments in general terms on a cut-off date which, for the purposes of this report, 
is 31 March 2006. 

The table at Annex 2 covers all the instruments with a transposal deadline that had 
expired  at  the  time  of  writing.  It  extends  beyond  Directives  and  Framework 
Decisions to include legislative instruments that have been followed up in Member 
States with a deadline for application or implementation that has also expired at the 
time of writing. This concerns certain Regulations and action plans adopted under the 
EC  Treaty  and  certain  decisions  based  on  Title  VI  of  the  EU  Treaty.  Table  2  also 
covers  Article  22  EC,  the  application  of  which  has  been  covered  by  a  series  of 
detailed reports. 

56. 

In  the  search  for  a  consistent  methodology  for  the  purposes  of  evaluating  the 
implementation of JFS policies by the Member States, it must be borne in mind that 

6 

Monitoring  the  national  transposal  of  the  Hague  programme  can  begin  only  with  the  reports  on 
implementation of the programme for 2007/2008. 

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57. 

58. 

59. 

60. 

61. 

7 

the data available will vary depending whether the instruments were adopted on the 
basis of the EC Treaty or Title VI of the EU Treaty. 

One common factor is that the Member States are required to transpose the measures 
provided  for  by  Directives  or  Framework  Decisions  and  to  notify  the  Commission 
or, in certain cases, the General Secretariat of the Council, of them. Compliance with 
the duty to notify is accordingly taken as one of the relevant factors for the purposes 
of  evaluating  national  implementation.  But  it  was  found  impossible  to  monitor 
compliance  with  the  duty  to  act  within  the  time  scheduled  in  the  instruments 
concerned  since  it  is  exceptional  for  the  deadline  to  be  met  by  one  or  the  other 
Member  State  as  regards  Framework  Decisions.  It  may  still  be  possible  to  use  this 
criterion to evaluate the monitoring of the national implementation of the measures 
provided for by the Hague programme/action plan in the future, but for the moment it 
was felt preferable to monitor compliance with the duty to notify transposal measures 
by 31 March 2006, the cut-off date adopted for this report. 

The  second  common  factor,  beyond  this  formal  transposal  and  notification 
obligation, is that Member States are required to transpose and apply Community 
and Union legislation correctly in terms of substance. 

The Commission has opportunities to evaluate the quality of national implementation 
when  answering  letters  from  citizens  and  questions  or  petitions  from  the  European 
Parliament.  Given  their  nature  and  great  diversity,  it  is  not  possible  to  make  an 
exhaustive  list  of  these  elements,  which  are  not  therefore  included  as  information 
sources  in  the  table  annexed  (2).  These  elements  are  often,  however,  used  and 
incorporated in the reports containing the overall analysis of the implementation of 
each instrument.  

Framework  Decisions  adopted  on  the  basis  of  Title  VI  of  the  EU  Treaty  routinely 
provide for at least one Commission report. This report generally serves as a base for 
a final report by the Council, which only rarely comes up for real discussion. Certain 
Framework Decisions which provide for differing deadlines for implementation are 
covered  by  successive  reports  (e.g.  the  crime  victims  Framework  Decision).  More 
and more often the Commission presents a fresh update report (e.g. the Framework 
Decisions on the European Arrest Warrant or terrorism), in particular when the first 
reports  date  from  before  the  most  recent  enlargement  (e.g.  the  2001  Framework 
Decision on money-laundering). The Commission sometimes also takes the initiative 
of  making  such  a  report  for  instruments  which  do  not  oblige  it  to  do  so  (e.g.  the 
Eurojust decision or the instruments for the protection of financial interests). No such 
initiative  was  taken  for  the  first  joint  actions,  such  as  the  one  on  participation  in  a 
criminal  organisation.  Common  positions  on  the  other  hand,  just  like  Framework 
Decisions, also provide for a report on national implementation7. 

The  position  is  not  quite  the  same  for  instruments  based  on  the  EC  Treaty.  While 
most  of  them  also  provide  for  a  report  monitoring  national  implementation,  it  is 
symptomatic  that  this  is  not  the  case  as  regards  illegal  immigration.  Of  the  four 

Lastly, and again exceptionally, certain instruments are subject to national peer review under the joint 
action of 1997. Such an exercise should thus be conducted for the Framework Decision on the European 
Arrest Warrant in 2006. These evaluations are not taken into account in this report, as they either date 
from too long ago or are too general in nature. 

EN 

11 

   EN 

 
                                                 
Directives  here  with  transposal  deadlines  and  obligations  to  notify  national 
transposal measures by the cut-off date of 31 March 2006, not one provides for such 
a report. Similarly, in the area of judicial cooperation in civil matters, the legal aid 
Directive 2003/8/EC does not provide for a report. 

62. 

63. 

But  the  fact  that  there  is  no  report  does  not  have  the  same  effect  for  instruments 
adopted  under  the  EC  and  EU  Treaties.  The  implementation  reports  are  the  only 
public  record  of  the  quality  of  national  transposal  of  the  instruments  for  police  or 
judicial cooperation in criminal matters. For those instruments for which there is no 
duty  to  notify  transposal  measures,  there  is  absolutely  no  indication  of  the 
effectiveness  of  the  measures  adopted.  A  case  in  point  is  the  joint  action  on 
participation in a criminal organisation. This, incidentally, is one of the grounds for 
the proposal for recasting of this instrument. 

In  the  case  of  the  Community  instruments,  on  the  other  hand,  infringement 
proceedings  are  a  clear  deterrent  to  Member  States  in  default,  facing  the  risk  of 
negative  publicity  and  possibly  even  of  periodic  penalty  payments,  as  can  be  seen 
from the monitoring of the quality of transposal in the table in Annex 2. 

2.2.  Monitoring policy by policy8 

2.2.1.  General guidelines 

64. 

65. 

As  regards  fundamental  rights,  only  Directive  95/46/EC  on  personal  data 
protection  is  concerned  for  the  moment.  The  Directive  has  met  its  objective  of 
ensuring a high level of protection of the citizen’s right to privacy and removing the 
barriers to the free movement of personal data in the Union. All the Member States 
complied  with  their  transposal  obligation,  considered  generally  satisfactory  in  the 
first  implementation  report  even  though  some  cases  of  incorrect  application  were 
detected.  

Moreover, the Commission’s evaluation of the 2000-2004 action plan in 2004 on the 
basis  of  data  provided  by  the  European  Monitoring  Centre  for  Drugs  and  Drug-
addiction  (EMCDDA)  and  Europol  comes  to  mixed  results  as  regards  the  national 
application of the European strategy and action plan on drugs. 

2.2.2.  Union citizenship 

66. 

67. 

8 

Experience  from  Commission  reports  and  infringement  proceedings  prompts  a 
satisfactory assessment regarding the application of Part II of the EC Treaty. All the 
Member  States  generally  complied  with  their  duty  to  notify  national  measures 
transposing  secondary  legislation  by  the  cut-off  date  of  31  March  2006.  The 
implementation  of  the  Directives  on  the  right  of  residence  of  pensioners,  inactive 
people  and  students  is  generally  satisfactory.  The  same  applies  for  the  current 
Directives on the right to move and reside freely on the territory of a Member State, 
though there are a few cases of incorrect application. 

Directives  on  voting  rights  at  municipal  and  European  Parliament  elections  have 
been transposed satisfactorily, even if the public make insufficient use of their rights. 

For the sake of consistency, the nomenclature of the Hague action plan is followed. 

EN 

12 

   EN 

 
                                                 
2.2.3.  Asylum, immigration, borders 

68. 

69. 

70. 

Apart  from  the  Commission  reports  that  show  very  satisfactory  results  on  the 
activities of EURODAC, the first phase of the asylum system is in the process of 
evaluation.  As  can  be  seen  from  the  table  in  Annex  2,  it  can  be  concluded  from 
certain  persistent  gaps  in  the  notification  of  transposal  measures  that  the  rate  of 
implementation is not yet ideal. 

European policy on legal immigration is still in its infancy, and there are as yet no 
reports  allowing  a  general  evaluation.  But  it  can  be  seen  that  application  is 
incomplete  from  the  significant  number  of  Member  States  which  have  not  notified 
measures  transposing  the  Directives  on  family  reunification  and  the  status  of  long-
term resident third-country nationals, where infringement proceedings are in motion. 

As  regards  illegal  immigration,  in  spite  of  the  absence  of  implementation  reports, 
the  other  indicators  available  reveal  a  relatively  satisfactory  transposition  level  of 
the least recent instruments, except in one Member State in particular. 

2.2.4. 

Security 

71. 

Apart from the Framework Decisions, the implementation of the instruments for the 
fight  against  organised  crime  and  for  police  and  customs  cooperation,  and  in 
particular the conventions and protocols adopted on the basis of Title VI of the EU 
Treaty,  are  difficult  to  evaluate  because  of  the  very  nature  of  the  instruments 
concerned, which make no provision either for a formal duty for the Member States 
to notify or for reports monitoring national implementation. Their speedy ratification 
remains the first priority. 

2.2.5. 

Justice 

2.2.5.1.  Criminal justice 

72. 

73. 

The  European  Arrest  Warrant,  instrument  of  mutual  recognition  par  excellence, 
despite initial transposal delays in about half the Member States, is now operational 
throughout the Union, subject to some efforts to be made by certain Member States 
to  comply  fully  with  the  text,  and  despite  constitutional  difficulties  in  several 
Member States. 

terrorism, 

the  overall  evaluation  of 

Concerning the harmonisation instruments, many of which are relevant to the fight 
against 
is  particularly 
disappointing,  even  though  the  Commission’s  practice  of  presenting  successive 
implementation  reports  reveals  a  positive  trend.  Instruments  are  very  often 
incompletely transposed, and sometimes with considerable delay, depending on the 
Member States. 

implementation 

74. 

None  of  these  failures  is  likely  to  give  rise  to  infringement  proceedings  as  the 
Treaties stand. 

EN 

13 

   EN 

 
2.2.5.2.  Civil justice 

75. 

The  evaluation  appears  difficult  at  this  stage  for  the  two  instruments  concerned9, 
since the time allowed for transposal of all the provisions had not expired at the cut-
off  date  of  31  March  for  one  of  them  and  had  only  just  expired  for  the  other.  It  is 
clear  from  the  only  report  currently  available  to  date  on  the  application  of  the 
Regulation  on  the  service  in  the  Member  States  of  judicial  and  extrajudicial 
documents in civil and commercial matters that there is room for improvement. On 
15  July  2005  the  Commission  accordingly  adopted  a  proposal  to  amend  this 
Regulation, now under examination in the Council and Parliament. 

2.3.  Monitoring by Member State 

76. 

The  following  overall  data,  all  instruments  combined,  can  be  derived  from  the  two 
indicators10  appearing  in  the  table  at  Annex  2.  The  first  two  tables  reflect  Member 
States’  failures  to  notify  transposal  measures  and  cases  of  incorrect  transposal  or 
application  respectively.  The  third  table  gives  aggregate  figures  for  the  two 
categories. 

Lack of communication of national measures to the Commission

50%

45%

40%

35%

30%

25%

20%

15%

10%

5%

0%

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Directive  2003/8/EC  relating  to  legal  aid  and  Directive  2004/80/EC  relating  to  compensation  for 
victims of crime. 
Indicators described in paragraphs 57 to 63 of this Communication. 

EN 

14 

   EN 

 
 
 
 
                                                 
12%

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78. 

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CONCLUSION 

At the end of this first Hague programme monitoring exercise, it is noteworthy how 
sharply  the  generally  positive  assessment  of  the  adoption  timetable  for  2005 
contrasts  with  the  much  more  mixed  results  of  the  monitoring  of  the  national 
implementation of the instruments adopted. 

It emerges from the monitoring of the adoption of the measures scheduled for 2005 
in the Hague programme that the institutional mechanism functions satisfactorily in 
JFS matters involving the EC Treaty. The progress achieved in judicial cooperation 
in civil matters and citizenship testifies to this. But the fact remains that, even here, 
when  unanimous  voting  was  provided  for,  it  was  a  brake  on  the  adoption  process, 
which probably contributed to delaying progress in priority policies under the Hague 
programme.  The  first  phase  of  the  European  asylum  system  is  a  case  in  point.  In 
contrast,  the  inter-institutional  dialogue  in  the  co-decision  procedure  proved 

EN 

15 

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79. 

80. 

81. 

82. 

83. 

particularly profitable and  made it possible to reach agreement  in  a  few  months  on 
such important instruments as the Directive on data retention, the border code or the 
local cross-border traffic Regulation. 

There are various reasons for the slow progress in matters involving Title VI of the 
EU  Treaty.  The  unanimity  requirement  for  police  and  judicial  cooperation  in 
criminal  matters  slowed  the  adoption  of  flagship  measures  such  as  the  evidence 
warrant and the Framework Decision on procedural rights. The Council’s uncertainty 
and hesitations regarding the choice of legal bases is another source of delay which 
this year again slowed down the adoption process, despite the judgment given by the 
Court of Justice on 13 September 2005 in Case C-176/03.  

The  very  first  evaluation  of  the  monitoring  of  the  national  implementation  of  JFS 
policies  appears  largely  compartmental,  and  certainly  insufficient  at  this  stage, 
though  this  observation  should  not  be  taken  as  relieving  the  Member  States  of 
responsibility for the shortcomings that have been observed. 

Moreover,  given  that  many  JFS  policies  are  still  in  their  infancy,  the  evaluation  of 
national  implementation  is  still  often  premature.  Such  is  the  case  for  asylum,  legal 
immigration,  mutual  recognition  in  criminal  matters  and  civil  justice,  but  also  for 
drugs, where there is a specific monitoring mechanism in the EMCDDA context. 

But  the  most  striking  deficiencies  in  both  quantitative  and  qualitative  terms 
regarding  the  general  rate  of  transposal  concern  instruments  under  Title  VI  of  the 
EU  Treaty.  For  example,  there  is  no  apparent  national  equivalent  of  the  Union’s 
determination in the fight against terrorism, to which the monitoring of this policy in 
the first part of this communication testifies.  

This report reveals that there is room for improvement in the existing framework, in 
particular  regarding  the  decision-making  process  in  the  areas  of  police  and  judicial 
cooperation  in  criminal  matters.  That  is  the  purpose  pursued,  on  the  basis  of  the 
current  Treaties,  by  the  Communication  on  implementing  The  Hague  programme: 
the way forward, which accompanies this report.  

EN 

16 

   EN