Building an area of freedom, security and justice

The second political assessment of progress in implementing the Hague Programme. («The Scoreboard»)

1. What is «The Hague Programme»?

«The Hague Programme» sets the objectives to be implemented in the area of freedom, security and justice in the period 2005-2010 and provides the framework for the European Union and the Member States to put in place the necessary measures to make Europe a safe place to live in.

The Union and the Member States must respond together in the fight against organised crime and terrorism, but also in the management of migration flows and the control of external borders. Implementing the multi-annual programme strengthening Freedom, Security and Justice in the European Union, is a common goal, which imposes effective and democratic accountable decision-making and clear political priorities.

2. What do we mean by ’First Pillar’ and ’Third Pillar’?

Title IV of the European Community Treaty (EC Treaty, part of the «First Pillar»), covers freedom of movement, migration, asylum and visa policies and civil justice, while EU competencies in the domain of fight against terrorism, prevention of and fight against organised crime, police and customs cooperation and judicial cooperation in criminal matters are included under Title VI of the European Union Treaty (EU Treaty), the so-called «Third Pillar».

Under the EU Treaty, Member States keeps the right to put forward legislative initiatives and decide unanimously.

Under the First Pillar/EC Treaty, the Commission has the exclusive right to initiate a legislative proposal and – in most cases– Members States decide on a qualified majority (unanimity is requested for family law and legal migration issues).

Moreover, the European Parliament and the European Court of Justice play a different, more important role in the EC framework, so to ensure more accountability in that area.

3. How is the implementation of the Hague Programme monitored?

Once a year, the European Commission presents an annual report (the scoreboard), to monitor the adoption of the measures envisaged and the transposition into national law of required instruments (Directives and Framework Decisions, while Regulations are directly applicable).

4. What are the main findings?

The 2006 scoreboard - the second monitoring exercise - shows wide variation between progress at EU level adoption and national implementation: whilst institutional adoption has been generally positive in matters under Title IV of the European Community Treaty (First Pillar), national implementation leaves a lot of room for improvement.

Even though significant progress was made at EU level, overall implementation of the Programme was lower than in 2005 (53% of actions achieved in 2006 compared to 62% in 2005). This is mainly due to insufficient progress in areas related to the Third Pillar, such as prevention of and fight against organised crime, police and customs cooperation, management of crisis within the EU and judicial cooperation in criminal matters.

Yet, important progress was made. Compared to 2005, this year saw a higher level of achievement in the areas – mainly in the First Pillar – related to respect and protection of fundamental rights, drugs policy, migration and asylum, visa and border policies, civil judicial cooperation in civil matters. [ Figures and graphics available in PDF and WORD PROCESSED ] [ Figures and graphics available in PDF and WORD PROCESSED ]

5. What is the issue with national implementation and especially with Third Pillar legal instruments?

A number of Member States fail to comply with the transposition deadline [incorporating agreed EU legislation into national law]. Moreover there are delays in transposition, which often exceed one year and at times reach several years

As for legal instruments under Title VI of the EU Treaty (Third pillar) shortcomings are mainly because:

The Commission has more limited powers to bring Members States before the Court of Justice, in case of infringements

Negotiations in the Council are often difficult and slow, and

The unanimity requirement often leads to watered down agreements

[ Figures and graphics available in PDF and WORD PROCESSED ]

6. How will the Intergovernmental Conference help?

The European Council has agreed to convene an Intergovernmental Conference (IGC) which will look at a draft Reform Treaty Text. It committed itself to complete its work before the end of 2007.

For Justice, Freedom and Security the European Council has given a mandate to the IGC to keep most of the Constitution’s achievements i.e., the «Pillars structure» will disappear, the co-decision procedure [qualified majority voting and Parliament as co-legislator] for most of the so-called ’Third pillar’ areas (police and judicial co-operation in criminal matters). This will help tackle the recurrent blockages, delays and watered down proposals mainly resulting from the unanimity rule.

7. Some Examples covered in the 2006 scoreboard:

a. Fundamental rights and citizenship

Performance in this area is generally satisfactory. Most of the actions planned for 2006 have been carried out, or are underway: the Fundamental Rights Agency was created on 1st March 2007 and on 4 July 2006 the Commission adopted a Communication «Towards an EU Strategy on the Rights of the Child».

In November 2006, the Commission issued a Green Paper on diplomatic and consular protection.

b. Development of a second phase of asylum

EU level:

The Common European Asylum System (CEAS) is made up of two phases. The first phase - the harmonisation of Member States’ legal frameworks based on common minimum standards - is now complete. The Hague Programme states that the second phase should be adopted by the end of 2010. On 24th May 2006 the Commission adopted an amended proposal for a decision establishing the European Refugee Fund for the period 2008-2013 as part of the general programme of Solidarity and Management of Migration Flows. The Council and the European Parliament reached a political agreement on the proposal in December 2006.

The 2006 report has again shown very satisfactory results on the activities of EURODAC.

National level:

The Directive on minimum standards for the qualification and status of refugees or persons who need international protection, for example, sixteen Member States have not fulfilled their communication obligation yet.

c. Migration Management

EU level:

As regards illegal immigration, some significant achievements took place: the Commission adopted a proposal for a Directive on sanctions against employers of illegal immigrants on 16 May 2007, following the Communication adopted in July 2006. A Community readmission agreement with Russia was signed on the 25th May 2006 and entered into force on 1st June 2007. The agreement with Ukraine was initialled on 27th October 2006. Negotiations of readmission agreements have been completed in spring 2007 with Serbia, the Former Yugoslav Republic of Macedonia, Bosnia and Herzegovina, Montenegro and Moldova.

National level:

On legal migration, for the Directives on the conditions of admission of third-country nationals for study reasons and similar activities and third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, respectively seventeen and eleven Member States lag behind the transposition deadline.

d. Integration of Third Country Nationals

The actions planned for 2006 in this area focussed on sharing information and experience on integration and have been mostly achieved: the implementation of the selected INTI projects (Integration of third country nationals) from the 2005 proposals is underway; the selection of projects from 2006 has taken place and the selected projects are currently being implemented. On 30th June 2006 the Commission presented the Second Annual Report on Migration and Integration, The Commission also developed the first edition of the «Handbook on integration» in 2006 (the second edition was issued in May 2007) and is currently developing the website on integration.

e. Integrated management of external frontiers and interoperability of information systems

In November 2006, the Commission adopted the recommendation establishing the practical handbook for border guards. On 20 December 2006 the European Parliament and the Council adopted two important Regulations on the establishment, operation and use of the second generation Schengen information system (SIS II) and regarding access to the Second Generation Schengen Information System (SIS II). On 10 March 2006, the Commission presented a modified proposal for a Council regulation concerning the use of biometrics in residence permits and, on 28 June 2006, adopted a decision laying down the technical specifications on the standards for security features and biometrics in passports and travel documents issued by Member States.

As regards visa policy, several actions have been taken: proposals on the necessary amendments to further enhance visa policy and the establishment of common application centres for visas, and amending the Common Consular Instructions on visa fees. On the VIS (Visa Information System), although agreement could not be reached by end of 2006, it was eventually reached in June 2007.

Visa facilitation agreements have been signed with Russia and Ukraine. Negotiations of visa facilitation agreements have been completed in spring 2007 with Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Montenegro, Serbia and Moldova.

f. Sharing of information among law enforcement and judicial authorities while striking the right balance between privacy and security

There are mixed results in this area. The Framework Decision on simplifying the exchange of information and intelligence was adopted by Council on 18 December 2006. A partial implementation of the principle of availability, which provides for a straightforward exchange of information for law enforcement purposes among national authorities, can be considered as attained through the German initiative aimed at transposing part of the existing Treaty of Prüm into the institutional mechanism of the European Union, which was agreed at the JHA Council in June 2007. Also the access by police to the VIS (see above under 5) can be considered as a step towards the implementation of the principle of availability.

g. Terrorism

Progress in this area has been constant. Ahead of schedule, on 29 November 2005, the Commission adopted a Communication on the prevention of and Fight against Terrorist Financing through enhanced national level coordination and greater transparency of the non-profit sector.

On 13 December 2006, the Commission adopted a Draft Decision on financing a set of actions with a view to strengthen the European Commission’s capacity to contribute to the EU’s management of crises. The Communication on a European Programme for Critical Infrastructure Protection was adopted on the 12th December 2006. The general approach to the creation of the European Law enforcement network (LEN) had to be discontinued due to lack of support by Member States. The legislative proposal comprising the creation of a critical infrastructures early warning information network (CIWIN) originally planned for 2006 had to be delayed to 2008.

h. Prevention of and Fight against Organised Crime

Most of the Commission’s proposed actions related to the prevention of organised crime, the strengthening of the tools to address financial aspects of organised crime, and the improvement of legislation and review of existing legal instruments were not achieved in 2006 and were delayed, due to a lack of consensus. The Commission Communication on developing a general policy on fighting cyber-crime, initially planned for 2006, was adopted on 22 May 2007.

EUROPOL produced the first Organised Crime Threat Assessment in 2006 and the Council adopted the conclusions setting out strategic priorities in June 2006In December 2006, the Commission submitted a proposal aimed at establishing EUROPOL on the basis of a Council Decision, with a view of setting more flexible legal basis for Europol. There has been progress in operational cooperation. A set of recommendations on the Custom IT system was adopted in May 2006 and the work to strengthen law enforcement cooperation in the Western Balkans, with SECI (South East Cooperative Initiative) as an important tool, is continuing.

i. Judicial Cooperation in Criminal Matters

In general, progress in this area has been slow and several actions delayed. Actions during 2006 focussed on pursuing the implementation of the mutual recognition principle. On 4 July 2006, the Commission adopted a Working Document on the feasibility of an index of third-country nationals convicted in the European Union and, on 29 August 2006, adopted a proposal on mutual recognition of non-custodial pre-trial supervision measures.

The report on the implementation of the Framework Decision of 22 July 2003 on freezing property or evidence and the proposal on driving disqualifications had to be postponed to 2008.

Delay occurred as regards the presentation of a Green Paper on default (in absentia) judgements and the adoption of a recommendation on minimum standards for capturing and exchanging electronic evidence.

With regards to harmonisation, on 26 April 2006, the Commission adopted the Green Paper on presumption of innocence, which was planned for 2005. However, the second report on the implementation of the Framework decision on the status of victims in criminal proceedings, originally planned for 2005, has again been postponed to 2008 given that Member States have failed to supply sufficient information.

As far as monitoring of national transposition in the mutual recognition field is concerned, all Member States have communicated national transposition measures concerning the European Arrest Warrant. However, at least four Member States need to make efforts in order to comply fully with this Framework Decision.

l. Judicial Cooperation in Civil Matters

Achievements in this area during 2006 were remarkable.

The Commission presented two Green Papers on the conflict of laws in matters concerning matrimonial property regimes including the question of jurisdiction and mutual recognition (17 July 2006) and on the effective enforcement of judicial decisions (24 October 2006).

On 12 December 2006, the Council and the European Parliament adopted the Regulation establishing a European Payment order procedure. However, the adoption of the Directive on certain aspects of mediation in civil and commercial matters has been delayed due to ongoing discussions within the European Parliament.

With regards to enhanced cooperation, the report on the functioning of the European Judicial Network (EJN) in civil and commercial matters (2005) was adopted on 16th May 2006.

With respect to international legal order the Council adopted a Decision on the accession of the Community to the Hague Conference on Private Law. Accession took place on 3 April 2007.

Monitoring of national transposition of two Directives relating to legal aid and relating to compensation to crime victims shows satisfactory results, although shortcomings remain with respectively one and four Member States not having had fully complied with their communication obligation.

MEMO/07/271

Brussels, 3 July 2007

Source : Europa

See also Report on the implementation of The Hague programme for 2006

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Building an area of freedom, security and justice