Police and Judicial Cooperation in Criminal Matters: Improving governance DRAFT Maria Fletcher Key words Police and judicial cooperation in criminal matters EU law Governance Synopsis A strong focus on law enforcement and security issues throughout the EU in recent years has resulted in increased awareness of the need to develop police and criminal law co-operation. A strong case can be made that the effective combating of serious cross-border crimes requires EU level action to coordinate the cooperation of national police activity. Additionally, the development of the internal market has created opportunities and more favourable conditions for criminals as well as law-abiding citizens. Consequently, this has placed a moral and legal duty on the EU to secure some 'compensatory measures' in the field of police and judicial cooperation in criminal matters. This growing political support for EU level intervention in recent years manifest itself in the increased visibility of issues of police and judicial cooperation in criminal matters (PJCC) on both the legal and political agenda (through various Treaty amendments, increased legislative and executive output and European Council Conclusions respectively.) Moreover the Member States have been at pains to stress that the development of EU policy here (as throughout the AFSJ policy field) is based upon general principles of subsidiarity, proportionality, solidarity and respect for the different legal traditions of the Member States.' The latter principle has found further expression in the principle of mutual recognition which is heralded as the cornerstone of EU judicial cooperation in criminal matters. Importantly, the Member States also express their commitment to fully observing and promoting fundamental rights across the whole AFSJ agenda. This high level political rhetoric combined with the limited conferral of legal competence in the field of PJCC might suggest a lack of real controversy both in terms of what can and should be done by the EU and how that is being achieved. However, on closer inspection, the development of EU police and judicial cooperation measures is never far from controversy. The very nature of the subject matter ensures that this is so. The national sensitivities and divergences in respect of criminal justice policy raise tensions as to the precise scope of EU level action and intervention required in this field. Moreover, the legal and institutional framework within which policy developments are nurtured and emerge is unsatisfactory when viewed through the lense of 'good governance.' The key problems in this regard relate to issues of legitimacy and accountability. This paper seeks to address the issue of governance in the field of PJCC. In particular, by drawing upon debates surrounding governance in other European Community policy contexts it seeks to examine the possibility of borrowing policy process mechanisms and using them in the field of PJCC. The basic contention is that improvements in the policy process (viewed in its entirety from policy inception and design through to implementation and review) will go at least some way to reducing the legitimacy deficits and competence tensions that exist. 1 - Distinctive features of the PJCC policy domain 2 – Recent developments – increasing policy aspirations 3 – Lessons from debates surrounding multi-level governance a) Consultation b) Monitoring 4 - Conclusions 1 - Distinctive features of the PJCC policy domain The Treaty of Amsterdam elevated cooperation in criminal matters into an objective of the EU (Article 2 EU and Article 29 EU): the Union's objective 'is to provide citizens with a high level of safety within an area of freedom security and justice.' The Amsterdam Treaty also created new legislative instruments to achieve this objective: framework decisions and decisions both of which are legally binding, although they do not have direct effect in Member States. Competences in the field of police and judicial cooperation in criminal matters have been exercised in three main ways - Through the adoption of legislation intended to approximate laws and regulations of the Member State (Article 31(e) EU provides a clear legal basis for the adoption of measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.) - Through the adoption of measures based on the principle of mutual recognition of judicial and extra judicial decisions. (The principle of mutual recognition was adopted as the cornerstone principle of the judicial cooperation in criminal and civil matters by the Tampere European Council in October 1999. Subsequently an ambitious programme was drawn up to implement this principle ) - Through the facilitation of executive measures promoting operational cooperation between relevant national judicial and police authorities either directly or through European agencies such as Europol and Eurojust. (See Articles 30 and 31 EU.) It is notable that these three 'governance techniques' have been explicitly endorsed by Article I-42 of the EU Constitutional Treaty which contains specific provisions relating to the area of freedom, security and justice. To carry forward the Justice and Home Affairs (JHA) agenda a new multi- annual programme known as "The Hague programme" was adopted by the European Council on 4-5 November 2004. This programme provides a long- term policy vision for the development of the EU as an 'area of freedom, security and justice.' This programme will serve as a framework for JHA policy priorities and developments until 2010 and therefore, assuming full ratification, encompasses the period of entry into force of the EU Constitutional Treaty. The Commission will add flesh to the bones of the Hague Programme in an Action Plan due to be published in April/May 2005. It is possible to identify at least four key factors that have shaped the development of the PJCC agenda either by acting as a catalyst or constraint to policy ambition: the nature of the subject matter and the impact of recent global security threats; influence of the European Council; the legal and institutional constraints and complexities; and the prevalence of operational and executive measures in the field. These 'distinctive contextual features of the regulatory field' for the purposes of this paper reveal two things – first, as Walker puts it, they 'help to make sense of the ongoing difficulties…which attend attempts at constitutional evaluation and engineering' and second – they explain why these attempts are valid and even essential. In other words they reveal the often stark need for effective and workable governance parameters and processes to ensure that the exercise of powers produces outputs and outcomes that are both legitimate and effective. Nature of the subject matter The sensitivity of the issues at stake combined with disparate national responses and traditions (recently exacerbated by the enlargement of the EU) and the potential impact of the policy on individual rights make for a complex policy domain. The House of Commons Select Committee on European Scrutiny recently opined that 'criminal justice is a matter which identifies the state.' The challenge is therefore to accommodate the diversity of national criminal law systems while also developing measures at the supra national level to prevent and combat increasing serious cross border crime and to ensure that the internal market does not inadvertently support criminals who are now more easily able to travel freely across borders. Such EU measures must also take account of the fundamental rights of individuals who may be concerned, whether they be suspects or defendants. The impact of recent prominent security events have, perhaps unsurprisingly had a marked if not quantifiable impact on the EU policy agenda. While it is true to say that terrorist events in recent years did not raise the issue of cross border crime onto the EU policy agenda, they have ensured that crime and security issues remain at the top of the EU political agenda and they have resulted in the expedited adoption of legislation such as the European Arrest Warrant Framework Decision. Such events have contributed to the oft cited imbalance in the agenda - prioritising security issues over freedom and justice- as reflected in the rapid development and adoption of what may be termed 'prosecutorial' measures as compared with the rather slow development of measures protecting the rights of suspects and defendants in criminal proceedings. The Framework Decision on Procedural Safeguards in Criminal Proceedings remains in draft from despite the fact that it is in a sense a corollary of the European Arrest Warrant. If the latter is directed towards ensuring more effective action against national and transnational offending, the Framework Decision on Procedural Safeguards is directed towards ensuring that the rights of those affected by this greater efficiency are properly secured. Reactive policy responses are inevitable in a policy field where unpredictable security issues are at stake. In fact, it is crucial that there is sufficient flexibility in the policy-making system to enable swift and effective policy responses to unforeseen changes in circumstance. However, in order to avoid knee-jerk policy reactions and in order to ensure that legitimacy concerns are taken into account it is important to develop appropriate procedures that enable scrutiny of the objectives and impacts of a given measure. EU political rhetoric has certainly acknowledged the need for a balanced agenda that is 'grounded in the general principles of subsidiarity, proportionality, solidarity and respect for the different legal systems and traditions of the Member States.' Moreover the political commitment to respecting fundamental rights in an area of freedom security and justice is made explicit in the text of the EU Constitutional Treaty at article III-257. Additionally, incorporation of the EU Charter into the Constitutional Treaty will 'place the Union, including its institutions, under a legal obligation to ensure that in all its areas of activity, fundamental rights are not only respected but also actively promoted.' It remains to be seen what impact this will have in the future development of PJCC policy, however, it cannot be denied that to date broader constitutional questions concerning optimal design and citizen protection have been driven by and sometimes even obscured by, vigorous and impatient policy agendas. Institutional and decision-making deficiencies in terms of political and judicial accountability A variety of Treaty-imposed legal and institutional constraints fail to secure appropriate democratic and judicial accountability in this policy field. Matters will improve somewhat upon entry into force of the EU Constitutional Treaty. In relation to decision-making, unanimity is required in Council for the adoption of police and criminal justice measures and Parliament is merely consulted (although it is not even consulted with regard to Common Positions.) The Commission shares its power of legislative initiative with the Member States pursuant to Article 34(2) EU. This position will change upon entry into force of the EU Constitutional Treaty. The Commission will continue to share its power of initiative in these areas, although it will share it with a quarter of the Member States rather than with a single Member State as at present. This, it is hoped, will avoid single presidencies submitting proposals in line with national rather than EU priorities and it provides the incentive for Member States and distinct criminal jurisdictions such as Scotland to engage in dialogue and policy-learning with other States. Most notably, in terms of improved democracy in decision-making, legislative procedures are generalised throughout the Constitutional Treaty so that codecision and qualified majority voting (QMV) becomes the standard procedure in the EU. Any exceptions to this must be made explicit in the text of the Constitutional Treaty. Several exceptions exist in relation to police and criminal justice activity: if the Council decides to establish a European Public Prosecutor's office within Eurojust it must act unanimously after obtaining the consent of the European Parliament ; measures concerning operational cooperation between police authorities (Article III-275) and measures concerning the operation of police authorities in another Member State (Article III-277) will require a unanimous Council vote after consulting the European Parliament (Article III-274); QMV and codecision apply to the adoption of harmonised criminal procedural rules (Article III-270) and substantive criminal law (Article III-271) subject to an 'emergency break' possibility. This 'emergency break' procedure (Articles III-270(3) and III-271(3) can be activated by a single Member State where it considers that a draft European framework law would affect fundamental aspects of its criminal justice system. Activation would result in a suspension of the codecision procedure while the draft measure is referred to the European Council for further discussion. After discussions and within four months the codecision procedure will either be reinstated or the draft will be dropped and a new draft requested. If, after four months the European Council has taken no action or if the resubmitted draft has not been adopted within twelve months, at least one third of the Member States can decide to proceed with the measure by way of 'enhanced cooperation' (Articles III-270(4) and III-271(4)). National parliaments will have increased opportunity to scrutinise and even block legislative proposals relating to PJCC pursuant to the new subsidiarity watchdog mechanism laid down in the Subsidiarity Protocol (Article III-259). It follows that considerable time and thought should be expended by the Commission to consult on the need for, and extent of, legislation at the pre- proposal stage. Judicial oversight by the European Court of Justice (ECJ) in the field of criminal justice is currently limited. Jurisdiction of the ECJ to give preliminary rulings on the validity and interpretation of measures pursuant to a reference from a national court, depend upon individual Member States agreeing to accept such jurisdiction. The UK has not accepted it. Another exclusion is set up in Article 35(5) EU whereby the ECJ cannot 'review the validity or proportionality of operations carried out by police or other law enforcement services of a Member State or the exercise of the responsibilities incumbent upon MS with regard to the maintenance of law and order and the safeguarding of internal security.' This prevents the ECJ from giving a final judgement of certain acts of Member States but does not restrict it from ruling on the interpretation or validity of EU acts. Finally, the ECJ has powers of direct judicial review (Article 35(6) EU) with regard to Framework Decisions and Decisions (not Common Positions) but only the Commission and the Member States can bring such cases. Upon entry into force of the Constitutional Treaty, the overall framework of judicial control as applies to other areas of EU law would extend to judicial and police cooperation in criminal law with one major limitation; Article III-377, (enshrining the current Article 35(5) EU limitation) stipulates that the ECJ has no jurisdiction to review the validity or proportionality of "operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security policing actions and Member State's prerogatives concerning, law, order and internal security." The retention of this judicial scrutiny exception has been criticised. Most notably the House of Lords opined that "the Court (ECJ) should have jurisdiction over all EU Justice and Home Affairs matters, including co-operation in relation to criminal law and procedure…. Such matters may impinge directly on the interests and rights of the individual. The Court should be entitled to measure the legality of action, whether that of the Union or of the Member States and their authorities when implementing Union legislation, against the norms contained in the Charter (of fundamental rights)." Influence of the European Council This body, although currently not a formal EU institution and lacking in legal competence, constitutes a formidable 'locus of power' and has undoubtedly played a fundamental role in the development of European integration by, for instance, providing strong political leadership and impetus to the Union. The European Council has incrementally carved for itself a decision-making role in the EU and a recent trend has developed whereby European Councils convene to discuss specific themes or policy agendas – this has happened with regard to Justice and Home affairs - most notably with the Tampere extraordinary European Council in 1999 and most recently with the Hague European Council in December 2004. Both of these landmark extraordinary meetings have provided long-term impetus and direction to AFSJ policy. Between Tampere and Hague, AFSJ has featured prominently in almost all general European Council meetings, ensuring that it remains at the top of the EU political agenda. Besides the symbolic value associated with the prioritising of AFSJ policy by the European Council, it is probably fair to say that this body, more than any other (including the Commission) has fundamentally shaped the content and direction of AFSJ policy. For instance, it was the Tampere European Council that suggested the creation of Eurojust and established the principle of mutual recognition as the underpinning principle of governance of EU Criminal Justice Policy. Both of these positions have subsequently been given formal legal status in the Nice Treaty and the Constitutional Treaty respectively. Also acknowledged in the provisions of the Constitutional Treaty is the distinctive role of the European Council in the AFSJ field. Article III-258 provides that the European Council shall define the strategic guidelines for the legislative and operational planning within the area of freedom, security and justice. That the highest level political grouping should play such a prominent role in guiding the development of such a highly controversial and sensitive EU policy agenda is hardly surprising. It reflects one aspect of the tension between intergovernmental and supranational approaches to EU integration that continues to exist in PJCC matters. Growth in use of executive agencies and high dependency on operational cooperation. Much third pillar PJCC action is executive or operational in nature. Such action either seeks to enhance co-operation between existing national (executive and operational) agencies or to develop new Europe-wide agencies, groupings and ad hoc bodies. Most well-known are Europol and Eurojust which have been developed to support and facilitate cooperation between police and judicial authorities respectively. Although to date these bodies have had little of their own operational or executive powers, more recently this situation has been changing (as discussed below). The emergence of new agencies and systems of co-operation are undoubtedly impacting upon national systems of law enforcement (albeit to varying degrees) and upon those affected individuals. Walker suggests that we are arguably 'witnessing a degree of executive (as opposed to legislative) penetration of national systems and challenge to statist prerogatives.' The challenge here is to ensure that appropriate mechanisms are developed in order to frame and limit the exercise of operational and executive powers. To date this has been lacking and operations by these bodies are not highly public at national level, and their legal nature is even murkier within the EU. Their often extensive powers to collect and store information on individuals raise crucial of issues of individual rights, particularly in the field of data control and protection and the vast accountability deficit has been widely acknowledged, if not yet adequately addressed. Combined, these distinctive features strengthen the argument for a more strategic and consistent consideration and application of principles of good governance to the development of EU criminal law policy. 2 – Recent developments – increasing policy aspirations This part of the paper identifies some of the recent trends and tensions that have emerged in the exercise of EU competences in the field of PJCC. We saw earlier that competences have been exercised in three ways; approximating legislation, measures establishing mutual recognition and measures strengthening operational cooperation between relevant bodies. Taking each governance technique in turn, I will highlight how, over time, increasing policy aspirations have been reflected in the exercise and extension of EU power. In doing so I hope to reveal the need for a more considered approach to policy development that will address issues of both effectiveness (and efficiency) and legitimacy. a) The creeping expansion of operational and executive powers in this field is particularly noticeable. A more operational role has recently been envisaged for Europol (new protocol to the European Convention OJ 2002 C312/1). Its remit is expanding incrementally and it is ceasing to be a purely co-operative organisation as originally intended. Similarly, the possible establishment of a European Public Prosecutor, which would be a judicial body of the EU with direct enforcement authority (not just powers to facilitate and coordinate action of the Member States) demonstrates that there is some dissatisfaction with the limited role of Eurojust. It was initially envisaged that the scope of the European Public Prosecutor's powers would be limited to the investigation and prosecution of financial crimes against the EC and indeed the Constitutional Treaty (Art III-274) provides a legal basis for precisely those ends. However, the Article also empowers the European Council to extend the powers of the European Public Prosecutor's office to include serious crime having a cross border dimension. [To be completed.] b) Largely, in an attempt to ensure the respect of diverse criminal justice tradition and, certainly for some Member States, in an attempt to minimise the need for EU harmonisation measures, the principle of mutual recognition was enshrined as the underpinning principle of EU judicial cooperation in criminal matter. Originally endorsed at the highest political level at the Tampere European Council and most recently inserted into the provisions of the EU Constitutional Treaty the principle of mutual recognition can in general be characterised as the acceptance and, where necessary, also the enforcement of in other jurisdiction of the EU, judicial and extra-judicial decisions taken in a Member State, with the minimum of further formality. As a consequence traditional judicial co-operation in criminal matters, based on the "request principle" (said to be characterised by its slowness and unpredictability) is being progressively replaced by one based on the concept of near automatic acceptance of judicial decisions, including pre-trial orders taken in one Member State by the appropriate authorities in all others. More recently the application of this principle has raised serious concerns, particularly in relation to individual rights. In a Union of now twenty-five states, the extent of diversity of criminal procedural standards is such that the conditions for mutual recognition are not necessarily met –they are conditions of trust in and respect of the criminal justice systems of other Member States. This has led one academic to argue that the principle as it has developed in criminal matters is not defensible, and should be reconsidered to align with the application of the principle in the internal market (from where this principle was borrowed), which usually requires either at least some basic comparability of underlying national laws before applying mutual recognition pursuant to the EC Treaty free movement rules, or the adoption of EC legislation to ensure that those national laws are sufficiently comparable. It should be pointed out that even at Tampere, the European Council acknowledged that mutual recognition could not entirely replace the need for some approximation of the domestic laws of the Member States. There, emphasis was placed on certain key aspects of procedural law where common minimum standards were thought to be necessary. However, it might be argued that the extent of the need for approximation was not anticipated, at least not by certain governments, including the UK. The tension arises between mutual recognition and approximation when one considers that mutual recognition extends only to the enforcement mechanisms of criminal law (judgements and pre-trial orders) and not the individual's right in respect of a criminal charge, trial and sentence, which remain bound up within the territory of the Member States. How can the protection for the rights of individuals in criminal procedure be guaranteed when criminal procedures vary extensively across Member States and where Member States comply only on a national basis with their fair trial obligations, deriving principally from the European Convention on Human Rights? According to the Commission it is only by introducing EU common minimum standards in relation to certain aspects of criminal procedure that it is possible to appropriately safeguard the rights of suspects and defendants in criminal proceedings throughout the EU and to create the appropriate conditions of trust to enable the proper application of the principle of mutual recognition. [Expand and insert examples] Recent prominent example of some of the difficulties that arise for the individual in the context of the application of the European Arrest Warrant. An Austrian cartoonist, Haderer, published a book which depicted Christ as a binge-drinking friend of Jimi Hendrix and a naked surfer high on cannabis. Unbeknown to him, the book was published in Greece. The first he knew of this was when he received a summons to appear in court in Athens on a charge of blasphemy. He received a six month suspended sentence in absentia which he is currently appealing. What would be the correct balance between the need to prosecute across borders and the right of an individual to express themselves freely in this situation. The tension between the principle of mutual recognition and approximation of national criminal procedures, exacerbated by EU enlargement and revealed most explicitly by the potential individual fundamental rights deficit, appears to have been acknowledged at the EU level. In its 'Communication on the assessment of the Tampere programme and future orientations' the Commission argues strongly that mutual recognition requires a basis of shared principles and minimum standards. It argues that there is a need to adopt certain common procedural standards to boost mutual confidence and trust between national judicial authorities thereby consolidating the mutual recognition principle. Based on this argument it has introduced proposals for legislation on common minimum procedural safeguards for criminal suspects and defendants, alternatives to pre-trial detention (Bail), evidence and ne bis in idem. Similarly, the Hague programme and the Constitutional Treaty make clear that the further realisation of mutual recognition as the cornerstone of judicial cooperation shall be accompanied by the development of approximating measures to the extent that these are necessary to facilitate mutual recognition. The condition of 'necessity' is an important safeguard and no doubt one that will be considered and contested vehemently by Member States who are naturally reluctant to cede control over their criminal law procedures. In a further attempt to secure political support the level of approximation that may be agreed at EU level is limited to the adoption of 'minimum rules' and such rules must be developed with due respect for the legal traditions of the Member States. Quite how these conditions work together in practice is unclear: How can common minimum rules take into account the differences between the tradition and systems of the Member States? How can a race to the bottom be avoided? Will the 'due respect'/'taking into account' condition be satisfied by appropriate opportunity for consultation in the decision- making process? c) Moves towards an extension of harmonization of substantive criminal law. The Hague Programme records the view that the "approximation of substantive criminal law" is needed to facilitate mutual recognition particularly in respect of serious crimes with a cross border dimension (s. 3.3.2). While this general proposition commands broad acceptance some of the detail remains unknown and is potentially controversial. In June 2004, for example, the Commission in its assessment of Tampere was content to say simply, but rather unhelpfully that "it will be necessary to go further in certain areas." It is of interest to note in this context that there is significant support within the European Parliament for a fairly broad range of approximation measures to be undertaken. For instance, in its report of 29 September 2004 the Committee on Civil Liberties, Justice and Home Affairs called for harmonisation measures to be adopted in respect of all thirty-two categories of serious offences listed in Article 2 of the Framework Decision on the European Arrest Warrant. These include areas in which action at the level of the Union has been taken or would be unproblematic (e.g., terrorism, drug trafficking, organised crime, trafficking in human beings). However, it also embraces such core criminal law matters as "murder, grievous bodily injury", "rape", "arson" and "swindling" where the emergence of a European interest could be expected to prove far more contentious. An example of a recently proposed measure to approximate substantive criminal law is the draft framework decision on the fight against organised crime of January 2005. The intention of this proposal is to approximate offences connected with participation in an organised criminal group. There would be a common definition of 'criminal organisation' defined by reference not to the specific offences being committed but by reference to a minimum length of imprisonment for committing offences (4 years.) It also imposes an obligation on Member States to define offences consisting of various forms of participating in a criminal organisation. The Constitutional Treaty clarifies and extends the competence of the Union in respect of the approximation of criminal laws. The list of offences for which common definitions and penalties can be introduced contained in Article III-271 is larger than currently exists; terrorism, trafficking inhuman beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. Moreover, the Constitutional Treaty enables this list to be extended where a particular crime is regarded as particularly serious with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis. Significantly, the Constitutional Treaty makes a link between the existing areas of Union policy that have been subject to harmonisation measures and the possibility of establishing common minimum definitions of criminal offences and sanctions in the areas concerned. This competence may be exercised where the approximation of the definitions of criminal offences and sanctions is essential to ensuring the effective implementation of the Union policy. 3 – Lessons from debates surrounding multi-level governance In recent years there has been a growing emphasis on improving European Governance. Largely driven by the Commission, the essential thrust of this agenda is to improve the quality of European level regulatory output by concentrating on the whole policy cycle – inception, design, legislation, implementation and review. More specifically it encourages appropriate consideration of the principles of subsidiarity and proportionality, the development of improved regulatory tools to carry forward the EU's policy agenda and a programme of simplification of existing regulation. At the heart of the EU's Lisbon Agenda lies the Better Regulation Strategy, which seeks to ensure that the action of the EU in this field is both efficient and legitimate. The Commission's 2002 Action Plan, informing the debate on better regulation, emphasised the need for processes to improve law-making involving wider and better consultation, the use of impact assessments and more efficient monitoring of Member States compliance. While the focus on the mainstreaming of good governance principles and mechanisms has tended to fall primarily on Community policies, it would appear that a similar dialogue and emphasis is required and indeed, overdue, in respect of third pillar policies. In the context of private law, Joerges comments that 'Europeanization must derive its legitimacy from the normative quality of the processes within which it takes place.' A similar sentiment might apply to the Europeanization of criminal law. The remainder of this paper highlights the need for improved and systematic consultation and monitoring procedures in the context of EU PJCC policy. Where appropriate reference will be made to mechanisms that have been developed to improve governance and regulation in the context of other EC policies. a) Consultation Consultation is an instrumental tool of better regulation. Indeed, improving consultation processes forms a major part of the BRS. Effective consultation can improve both the quality and design of regulation, and its implementation, including rates of compliance. It can be said to deliver both legitimacy and efficiency gains provided that consultation is systematic and timely and engages with the appropriate relevant stakeholders. Stakeholders must be clearly identified and be fully prepared to engage in these early policy development discussions. There is a dearth of effective and systematic consultation in the field of PJCC. Inappropriate consultation can and does result in the emergence of substandard and inappropriate legislation. Given the likelihood that such legislation is likely to have an impact on the lives of individuals, this is particularly worrying. Following the events of September 11 2001 an extraordinary Council was held on 21 September and as part of its 'Road Map on Terrorism' it was agreed that the text of the Framework Decision on the European Arrest Warrant should be agreed by Christmas 2001. Scope was not allowed 'for anything approaching serious consideration of the proposal, nor for a measured assessment of its particularly wide-ranging implications for the rules of criminal procedure.' The Commission's proposal achieved political approval in less than three months and was formally adopted by the Council on 13 June 2002 with removal of the last Parliamentary reservations. The lack of considered reflection prior to the adoption of the Arrest Warrant Framework Decision has ultimately resulted in a piece of legislation that has been difficult to implement and whose application raises specific concerns in relation to the protection of individual rights and legal certainty. That such a ground breaking piece of legislation in this field – the first and most striking example of EU judicial cooperation in criminal matters and the first measure based on the underpinning principle of mutual recognition – should be adopted in this manner is particularly regrettable. The Commission, besides issuing Green and White Papers may also make use of alternative ways to consult in advance of policy formulation. In respect of the Proposed Framework Decision on procedural rights in criminal proceeding the Commission published a consultation paper on its website, sent a questionnaire to the ministries of justice of the MS and hosted an experts meeting in Brussels, all prior to the publication of the Green Paper. Within the framework of the Better Regulation package and the European Sustainable Development Strategy, the Commission introduced a new Extended Impact Assessment (EIA) method in 2002, integrating and replacing previous single-sector type of assessments. The EIA is a process aimed at structuring and informing the development of policies. It occurs at the very earliest stages of policy design, ideally even before the emergence of concrete proposals. By way of appropriate consultations it enables the identification and assessment of the policy issue/problem at stake and the objectives to be pursued. It identifies the main options for achieving the objectives and analyses their likely economic, environmental and social impacts. There are three stages to the EIA process. First, the responsible Commission Directorate General prepares a Preliminary Assessment for all legislative proposals and other policy initiatives with economic/social/environmental impacts proposed for selection in either the Commission's Annual Policy Strategy (APS) or its Legislative and Work Programme. The Preliminary Assessment is expected to be a short statement of the key problems to be addressed by the policy initiative, and a statement on the principles of subsidiarity and proportionality. Second, the Commission decides in its APS decision and/or Work Programme which proposals will require an Extended Impact Assessment. To decide, the Commission considers inter alia: a. whether the proposal will result in substantial economic, environmental and/or social impacts on a specific sector or several sectors; b. whether the proposal will have significant impact on major interested parties; c. whether the proposal represents a major policy reform in one or several sectors. The EIA is then carried out, normally during the Spring, and usually involves some form of external consultation of interested parties and the collection and use of expertise. Third, the completed IA will be attached to the inter-service consultation and the main results of both the preliminary and extended assessments are summarised in the Explanatory Memorandum (EM). All reports are attached to proposed decisions submitted to the Commission for final adoption. In turn, the Commission undertakes to present this information in the EM to accompany a legislative proposal in order to justify the appropriateness of regulatory activity being undertaken at the EU level. To date only 3 JHA-related issues have been the subject of extended integrated impact assessments and only one of these concerns the field of criminal justice policy (the other two relating to legal migration and the creation of a refugee fund.) An EIA was carried out in relation to discussion surrounding the emergence of a draft Framework Decision on certain procedural rights in criminal proceedings throughout the European Union although it started over a year into the policy formulation process. As a result of this delayed start, the influence of the impact assessment on the choice of the scope and the alternatives to be proposed was quite limited – it did, however add value to the policy design process by usefully assisting in the decision on the most appropriate instrument and on the parameters of intervention. Furthermore the impact assessment did allow for a more careful consideration of the potential social, economic and environmental impacts of the proposal, in the course of the extensive consultations leading to its formulation. [To be completed] The consultation process as a whole enabled extensive consideration of the principles of subsidiarity and proportionality - questions surrounding the tension between mutual recognition and approximation as discussed above, were discussed. The Commission concluded that a common set of minimum standards on safeguards will be necessary for all the MR measures, to allay anxieties about the perceived 'lower standards' in other States and to counter criticism of certain criminal justice systems in the EU. It will ensure that the fundamental rights of the European citizen are respected uniformly in this important area. Systematic and effective consultation procedures are a vital component of good governance and the emergence of effective and legitimate policy outputs and outcomes. Appropriate consideration must be given to how such procedures can be used to inform policy choices in this field, whether they be legislative or executive in nature. The Commission should take the lead on this as it has done in other Community policy domains. b) Monitoring Another key component of improving the regulatory environment is the effective implementation, enforcement and monitoring of measures following their adoption. Only by establishing an appropriate system of monitoring and evaluation is it possible to measure whether a particular EU policy initiative has in fact 'added value.' The need for appropriate monitoring in the field of judicial cooperation in criminal matters is particularly acute given the predominance of the principle of mutual recognition. Evaluation and monitoring of the criminal justice systems of the Member States and how they are complying with EU measures is rightly regarded as an essential component to achieving the conditions of trust necessary for the effective application of the principle of mutual recognition. Similarly, operational cooperation between law enforcement authorities should be monitored Besides the adoption of the annual scoreboard of AFSJ measures there has been little practical implementation of the political commitment to secure robust systems of monitoring. The Tampere European Council Conclusions recorded the need for effective monitoring systems and in the absence of any real progress this goal has been reiterated in the recent Hague Programme. This calls for the development of practical methods to ensure both timely implementation of AFSJ measures and evaluation of the implementation and effect of all measures. It anticipates that regular progress reports by the Commission to the Council during the implementation period should provide an incentive for national action by Member States. Undoubtedly, this will require the co-operation of national and sub-national authorities if it is to work effectively. It may be that in the absence of an independent body discussing the future direction of this policy agenda as there is in the civil law and family law fields that the establishment of an open method of coordination would be appropriate. This would enable a system of benchmarking and peer review and would facilitate a wide-ranging discussion about criminal justice and policing across Europe. Alternatively, it might be that the new Human Rights Agency, when it is formally established, could monitor the compatibility of EU criminal justice measures with fair trial obligations. [To be completed] 4 - Conclusion When analysing the development of the AFSJ 'project' it is worth remembering that it is still in its relative infancy, albeit growing up rather ahead of its time. The distinctive features of the PJCC field, reveal a complex policy picture and a clear temptation for growing policy responses at the EU level. To date, the ever-expanding policy aspirations have been embraced though adaptations of the institutional and legal framework and increased exercise of competence (both legislative and operational). However, what appears to be a lacking is a broader questioning and consideration of what the EU can and should be doing in the field of PJCC. In order to begin to do this, this paper has suggested that room should be made within the existing political and legal PJCC framework for discussions and processes of good governance. Debates and mechanisms (particularly consultation and evaluation mechanisms) that have developed largely in the context of Community policy agendas perhaps provide a helpful start. Lecturer in European Law, University of Glasgow, UK. Comments on the paper would be gratefully received. Please send them to M.Fletcher@law.gla.ac.uk. The Hague Programme adopted by the European Council on 5 November 2005. O.J. C 12/10, 15.1.2001 Walker at 10 ??? Draft framework decision on procedural safeguards for suspects and defendants Brussels, 28 April 2004; COM (2004) 328 Final; 2004/0113 (CNS).. More proposals are in the pipeline – pre-trial detention (bail) and the admissibility of evidence. Hague Programme at ???? Significantly, this rhetoric has been clearly enshrined in the EU Constitutional Treaty at Article III-257. COM(2004) 4002, Brussels, 2.6.04 at 8 N. Walker 'In search of the Area of Freedom, Security and Justice: A Constitutional odyssey.' In Book????? At 15 Although note that political momentum for such an initiative appears to have cooled. Mention of the 'public prosecutor' was omitted from the final version of the Hague Programme. The first ECJ judgment ('Pupino') pursuant to Article 35 EU is pending following the Opinion of Advocate General Kokott in Case C-105/03 on 11 November 2004. In order to resolve the question of the referring Italian court, the ECJ will be called upon to give an interpretation of Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings (OJ L82/1, 22/03/2001). The case concerns the treatment of child victims of crime who are called to give evidence. House of Lords European Union Committee, 'The Future Role of the European Court of Justice,' 6th Report of Session 2003-04 at para. 123 P.De Schoutheete in J.Peterson and M.Shackleton chapter 2 at 21 Recognition of the important role now played by the European Council is reflected in the Constitutional Treaty which confers the formal status of 'EU institution' on the European Council for the first time. See articles I-19, I-21 and III-341 This may or may not be based upon a legislative measures but in any case refers to the stage of policy application and implementation. Eurojust assists national judges and prosecutors to deal with cases with a cross border dimension. Eurojust, acting either through its individual members or through its college, has no powers of direct action on the territory of the Member State. It has no power to launch its own prosecutions or investigations, nor to prosecute a case in court. Similarly, Europol cannot conduct criminal investigation in its own name in Member States. For a helpful discussion on the powers and functioning of Eurojust, and indeed the European Public Prosecutor see Christine van den wyngaert, 'Eurojust and the European Public Prosecutor in the Corpus Juris Model: Water and Fire? in Walker (ed) chapter 5 ??? Walker at 22 The Constitutional Treaty distinguishes between legislative and operational tasks in the field of PJCC. Moreover it provides for the possibility of political monitoring of Europol and evaluation of Eurojust's activities by national parliaments and the European Parliament (articles I-42(2), III-273 and III-276.) Article III- 270 S.Peers, ???? CMLRev 2004 41 5-36 See Elspeth Guild, 'Crime and the EU's Constitutional Future in an Area of Freedom, Security and Juctice' Macrh 2004 European Law Journal 10(2) 218 The Guardian, Wednesday 23 March 2005 The Constitutional Treaty provides a clear legal basis for the adoption of common minimum rules relating to aspects of criminal procedure ( Article III-270(2)) according to his common minimum rules shall concern a) mutual admissibility of evidence, b) the rights of individuals in criminal procedure c) the rights of victims of crime and d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision (acting unanimously after obtaining the consent of the European Parliament.) COM (2004) 401 final, 2.6.2004, p. 12 (A6-0010/2004 final, p. 10). Article III-271 Article III-271(1) Article III-271(2) The Lisbon Strategy lays down an ambitious goal for the EU; by 2010 the EU is to be the most competitive and knowledge based economy in the world which also balances goals of social cohesion and environmental protection and sustainability. It would appear, especially in the light of the Four Presidencies Paper that the efficiency agenda is being pursued most rigorously – however it is submitted that a more balanced consideration of efficiency and legitimacy considerations is appropriate. In particular in the fields of civil and criminal cooperation. Christian Joerges, 'Europeanization as Process: Thoughts on the Europeanization of Private Law' 2005 European Public Law Vol 11(1) 63 at 64 Mandelkern Group on Better Regulation, Final report, 13 November 2001 The Minority Opinion of the European Parliament on the Commission Proposal for a Council Framework Decision A5-0397/2001 See for the development of this argument; S.Alegre and M.Leaf, 'Mutual Recognition in European Judicial Cooperation: A Step Too Far Too Soon? Case Study - the European Arrest Warrant. European Law Journal March 2004 10(2) 200-217 See COM (2002) 276 final. see COM (2002) 276 final, 3.2 The Commission adopted a set of 'General Principles and minimum standards for consultation of interested parties' on 11 December 2002, COM(2002)704. SEC(2004)49 Brussels, 28.4.2004. SEC(2004)49 Brussels, 28.4.2004 at 2.