Justice and home affairs

There are now a large number of areas in which the effect of European Community law is clear, such as employment and sex discrimination, agriculture, consumer law and competition, to name but a few. Justice and Home Affairs is, however, an area in which the Union has only relatively recently become involved. The rationale behind this development was that, with freedom of movement, greater co-operation between Member States in relation to justice and home affairs matters, such as cross-border crime and access to justice would inevitably be required. Here we consider a little of the background to this area of Community competence, the Treaty framework and institutional roles, and look at some of the proposals in the pipeline.

Treaty Framework

Co-operation in the field of Justice and Home Affairs was first brought into the European structure by the Maastricht Treaty in 1993 as the third pillar of the newly created European Union. Under the Treaty this area was dealt with in a different way than traditional areas of Community competence and was characteristically more “intergovernmental” in procedure - the Justice and Home Affairs pillar was outwith the institutional structure as such, was not subject to Community law-making processes and was largely not subject to the control of the ECJ.

Following the adoption of the Treaty of Amsterdam, Justice and Home Affairs was largely brought within the Community institutional and legal structure, forming Title IV (articles 61-69) of the Treaty which deals with judicial co-operation in civil matters, visas, asylum and immigration. The amended third pillar now only covers police and judicial co-operation in criminal matters. The UK and Ireland negotiated a Justice and Home Affairs opt-out with the possibility of opting into specific instruments, if so wished. Both the new Title and the amended third pillar have the same aim to establish an “area of freedom, justice and security”. Under Title IV, Justice and Home Affairs initiatives can be dealt with by the usual Community instruments (Regulations, Directives, Decisions, Recommendations and Opinions).

Institutional Roles

Although within the Community structure, action in relation to Justice and Home Affairs under the new Title is not implemented in the same way as other Community policies. Because of the national sensitivities involved, greater weight has been given to Member States and the powers of the Commission, Parliament and the Court of Justice have been correspondingly limited. For example, in relation to the ECJ, although article 234 does apply, applications for preliminary references are limited to national courts from which there is no judicial remedy. The ECJ also does not have jurisdiction in relation to measures under article 62 (1) (in relation to free movement) relating to law and order and internal security.

The position of the Commission is also different under Justice and Home Affairs. Although it does have a right of initiative in relation to all areas, both under Title IV and the third pillar, it does not have sole right of initiative in co-operation in Justice and Home Affairs, as it does in respect of exclusively Community policies; it shares this role with the Member States. Where areas brought into the Community structure are concerned, the Commission will only have sole right of initiative after a transitional period of 5 years following the entry into force of the Treaty. During this transitional period, the Treaty provides that the Council is in general to act unanimously on a proposal from the Commission - or on the initiative of a Member State - and after consulting the Parliament. After this period, the Council can only act on Commission proposals. Moreover, the Council may, acting unanimously and after consulting the Parliament, decide to make all or part of the areas covered by this Title IV subject to the co-decision procedure.

The Tampere Council

At a special European Council meeting devoted to Justice and Home Affairs in Tampere in Finland in October last year, various initiatives in this field were agreed between Member States. One area on which particular emphasis was placed was access to justice and the Council called for action to establish a network of national authorities in relation to judicial co-operation, minimum standards in relation to cross-border legal aid, accelerated cross-border litigation and minimum standards for the protection of victims of crime. The Council also endorsed the principle of mutual recognition of judicial decisions in both criminal and civil matters. Although other matters were already being negotiated, the Tampere Council did provide a lot of impetus for action in this area.

Current Proposals

Steps were taken after the coming into force of the Treaty of Amsterdam to negotiate a Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, an area presently dealt with principally by the 1968 Brussels Convention. It is still the subject of negotiation and the question of jurisdiction in consumer contracts, in particular, has been surrounded by controversy because of the potential implications for retailing by website. A Regulation has already been negotiated on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses.

As agreed at Tampere, a proposal has also been put forward to set up a European Judicial Network in civil and commercial matters, which would encourage co-operation between national and judicial authorities in this area. Earlier this year, the Commission published a Green Paper on civil legal aid which was intended to encourage discussions on how to achieve minimum standards for legal aid in cross-border matters.

In relation to judicial co-operation in criminal matters, the Commission has published a Communication on the principle of mutual recognition of final decisions in criminal matters which it opened up for comment until 31st October. Proposals have also been put forward in relation to the standing of victims in criminal procedures where there are cross-border issues.

These are only some of the proposals being considered at the moment. There are many others also in relation to immigration, asylum and police co-operation. Further information on current proposals can be found at www.europa.eu.int/pol/justice/index_en.htm