Introduction

Prior to the creation of the Third Pillar on Justice and Home Affairs Cooperation (JHA) in the Treaty on European Union (TEU), a plethora of working groups and fora dealt with different issues, ranging from drugs to illegal immigration, and from terrorism to customs cooperation. With the formalization of Justice and Home Affairs under the Third Pillar, EU Member States have acknowledged the need for an intergovernmental approach to problems and issues that can no longer be countered merely at national level. Moreover, the Member States have shown a long-term commitment to cooperation in this field by outlining policy strategies and proposals. This article aims to provide an update of the current issues dominating the debate within the Third Pillar, ranging from institutional and organizational issues to more substantial issues such as the activities that have been developed.

The Organizational Structure

The organizational structure of the Third Pillar represents a convergence of the previously existing working groups and structures at European Union level. The most significant of these former groups were the Ad Hoc Group on Immigration, which laid the foundation for the Dublin Asylum Convention, and Trevi, which stems from European Political Cooperation and which formed the basis for the Europol Drugs Unit. Although these fora were very active, the problem was that their accountability to European institutions (Commission and Parliament) was limited and that their transparency was minimal. The new setup within the Third Pillar is meant to be an improvement of the coordination of various initiatives, the role of European institutions and the transparency of decision-making.

Working groups and fora such as the Ad Hoc Group and Trevi were brought under the umbrella of the Coordinating Committee, also known as the 'K.4 Committee'. The Coordinating Committee is accountable to the Committee of Permanent Representatives (COREPER) and to the Council of Ministers of Justice and Home Affairs (JHA Council). Three steering groups report to the Coordinating Committee (Immigration and Asylum; Security, Police and Customs Cooperation; Judicial Cooperation), and preparatory work is done in the working groups. Although the new structure has established a central form of coordination, it has also introduced more bureaucracy and more levels of decision-making, thereby turning the rate of progress into a relatively slow one. Politicians have acknowledged this problem, and have put the organizational structure of the Third Pillar on the agenda for the 1996 Intergovernmental Conferences.

The organizational structure of the Third Pillar is as follows:1

I. Immigration & Asylum³ II. Security, III.Judicial Cooperation

­ Migration Police and Customs ­ Extradition

­ Asylum Cooperation⁴ ­ International organized crime

­ Visas ­ Terrorism ­ Criminal law/Community law

­ External frontiers ­ Police cooperation ­ Driving licence withdrawal

­ Forged documents (operational and technical) ­ Transfer of trial documents

­ CIREA and CIREFI⁵ ­ Drugs and serious ­ Application of Brussels Convention

organized crime

­ Customs

­ Ad Hoc group Europol

The Coordinating Committee occupies a key position between the Council and the Steering Groups as it will give opinions to the Council and prepare its discussions (Article K.4.1). Each Member State of the European Union has a member in the Coordinating Committee. The European Commission is also a member of the Committee.

The Role of EU Institutions in the Third Pillar

The position of the European Commission was strengthened by Article K.4, which provides for a full association of the Commission with the work in the field of JHA. This raises the level of its involvement to one beyond observer status, but its powers are not the same as those it enjoys under the First Pillar.⁶ The Commission also regularly informs the European Parliament of discussions about JHA matters (Art. K.6) and, more importantly, has been given the right of initiative in areas referred to in Article K.1 (1) to (6) (Art. K. 9). Hence, the Commission has a right of initiative in the following matters of common interest: asylum policy; rules governing the crossing by persons of the external borders of the Member States and the exercise of controls thereon; immigration policy and policy regarding nationals of third countries; combating drug addiction; combating fraud on an international scale; judicial cooperation in civil matters. Excluded from this right of initiative are: judicial cooperation in criminal matters; customs cooperation and police cooperation.

The European Parliament, meanwhile, has seen a slight improvement of its status vis-à-vis JHA matters in Article K.6 of the Treaty. The European Parliament will be informed of discussions by the Presidency and the Commission, it will be consulted on the principle aspects of JHA activities and it may ask the Council questions or make recommendations to it. However, these new provisions do not give the European Parliament an effective means of democratic control in JHA matters, firstly because the intergovernmental nature of JHA cooperation means that the national parliaments have competence to exercise democratic control instead of the European Parliament, and secondly because the European Parliament cannot force the Commission or the Presidency to make information ­ which is an essential precondition for effective control ­ available in time.⁷ Even for national parliaments it is hard to exercise effective control. The most important complaint has always been that documents are not made available in time, but there are now also problems with possible bypass operations performed by the European Commission and the European Parliament.⁸ It was recently announced by Commissioner Anita Gradin that the Europol Convention should be ratified at an early stage, and that the remaining question about the role of the Court of Justice could be settled later in a protocol.⁹ If implemented, this latest strategy would mean a breach of promise between some national governments and their parliaments (i.e. the Dutch and Belgian ones), who declared that they would not ratify the Europol Convention unless the matter of the Court of Justice was settled satisfactorily in a protocol. These issues reveal frictions between institutions at national and supranational level.

The debate about the European Court of Justice is still in full swing, and it is exactly the role of this institution in Third Pillar issues that lies at the root of delays in the signature and ratification of several conventions, such as the Dublin Asylum Convention, the draft Convention on the Crossing of External Frontiers, and the Convention on the Establishment of Europol. The Benelux countries favour a maximalist role of the European Court of Justice in these conventions, while Great Britain in particular is strongly against jurisdiction of the Court in conventions that have been drawn up under Art. K.3.2 (c).¹⁰ Until recently the Netherlands was blocking ratification of the Dublin Asylum Convention because ratification of this convention without a proper role for the Court would create a precedent for future concessions in the ratification of other conventions. The Convention on the Uses of Information Technology for Customs Purposes (CIS) and the Convention on the Protection of the Community's Financial Interests were signed on 26 July 1995; both conventions contain a clause in which six signatories declare they want a satisfactory solution with regard to the competence of the Court of Justice by June 1996.

Summarizing the position of the institutions with regard to Third Pillar issues, one may conclude that the intergovernmentalist approach appears to remain firmly entrenched. The decision-making procedures in the Third Pillar are of such a nature that 'communitization' of Third Pillar issues is unlikely for the time being. The passerelle (Article K.9), which provides the possibility to transfer some common matters of interest from the intergovernmental Third Pillar to the Community First Pillar, is a theoretical route to 'communitization'. Practically and realistically, the unanimous voting procedure makes the chances of using the passerelle provision remote if not impossible. If this procedure remains in place, decision-making will even be more difficult when the European Union is enlarged since the more partners, the more difficult it is to achieve unanimity. It is not surprising therefore that this voting procedure is one of the issues to be discussed in the context of reforming the Third Pillar. It should be added that the procedure of unanimous voting, in combination with tough ratification procedures in the Member States, virtually rules out an acceptable rate of progress of justice and home affairs cooperation: it is a 'double lock procedure', as Professor David O'Keeffe puts it.¹¹

The Council, realizing that the decision-making procedures are slow and cumbersome, has therefore relied strongly on instruments other than conventions, namely 'joint positions', whereby cooperation in certain areas is promoted, and 'joint actions', whereby joint action is considered to have more value than individual action by the Member States. For the implementation of a joint action, the Council may decide that a qualified majority is sufficient for the adoption of the measure for it. The problem with these two instruments is that their legal status is unclear. Although they are technically non-binding, joint positions oblige Member States to defend their common position within international organizations and at international conferences (Art. K.5). As we will see below, many of these instruments have been developed over the past few years, making it difficult to make an inventory of the implementation rate of these instruments in the Member States. National governments, legal experts and politicians have already called for a clarification of the legal status of these Third Pillar instruments.¹²

The Intergovernmental Conferences (IGC) and the Third Pillar

The IGC discussions about the reform of the Third Pillar will pertain to its structure, its procedures and its contents. All three issues are hotly debated, which makes for quite a formidable agenda. The Member States and the EU institutions have different views on each of these reforms, making it again difficult to define common positions. A document that offers a guideline for the debate across the parties is the report of the Reflection Group, which was partly drafted in Messina in June 1995, and concluded in Brussels on 5 December 1995.¹³

Some governments in Member States, such as the Dutch, have issued IGC reports on the revision of the Treaty on European Union. When studying the Dutch ICG report on the Third Pillar,¹⁴ it is striking that proposals pertain to institutional reform rather than substantial progress. The Dutch government promotes the idea of more institutional involvement in the Third Pillar, which it views as the incorporation of Community elements into the intergovernmental JHA cooperation. It brings proposals on institutional reform to the fore because there is disappointment about the lack of efficiency created by the multi-layered decision-making structure of the Third Pillar. Increased institutional involvement is also supposed to raise the level of transparency, and legal and democratic control. The other Benelux countries have promoted the same point of view, although Belgium is even a proponent of complete 'communitization'. Meanwhile, the British government is taking an extreme position at the other end of the spectrum, namely by maintaining that a more substantial role for EU institutions in JHA cooperation would wipe out the important distinction between the Community and intergovernmental pillars.¹⁵

In spite of the fact that the European Commission makes a few proposals with regard to an improved role for the Court of Justice and the Court of Auditors, its proposals tend to relate more to reforming the 'substance' of the Third Pillar than to its institutional clockwork. According to JHA Commissioner Gradin, 'important' elements of the Third Pillar should be moved to the First Pillar.¹⁶ A limited interpretation is that immigration and the free movement of persons should be subject to 'communitization', even more so because they show overlap with Art. 8a and Art. 100c in the First Pillar. Against this background, the Commission submitted a Proposal for a Council Directive on the right of third country citizens to travel within the Community and a Proposal for a Council Directive concerning the abolition of controls on persons at internal borders.¹⁷ A wider interpretation is that all six matters of common interest in which the Commission has a right of initiative should be moved to the First Pillar, and that its right of initiative should be widened to include judicial cooperation in criminal matters, customs cooperation and police cooperation.

The Reflection Group emphasizes the role of JHA cooperation as a compensatory regime for the loss of security resulting from the abolition of border controls. This situation presents a significant challenge but one which, according to the Reflection Group 'is not matched by the results achieved so far in response to them'.¹⁸ In other words, like the Commission and the national governments of the Member States, the Group complains about a lack of progress, and particularly blames the lack of an institutional driving mechanism and 'extremely slow approval procedures'. The strongest proposal of the Reflection Group for the IGC is therefore to reconsider the requirement of unanimity in the voting procedure.

Given the widely diverging points of view of all parties involved, it seems unlikely that the IGC will considerably influence the substance and structure of the Third Pillar. The picture that emerges is however that the consensus lies predominantly on choosing institutional reform, and that chances to 'communitize' Third Pillar issues seem more remote.

Activities within the Third Pillar

When drawing up an inventory of the number of activities that has taken place under the remit of the JHA Council, one is quickly impressed by the sheer range of issues that has been dealt with. Reality, however, looks less favourable. The main reason for this has already been discussed above: none of the signed Conventions has yet been ratified by all Member States, resulting in a partial and uneven realization of Third Pillar instruments, and encouraging a heavy reliance by the JHA Council on non-binding instruments. The frustration about the slow progress is even more poignant when considering that many regard the creation of a tangible security framework as the way to guarantee the social legitimacy so badly needed by the Union in these times of renewed scepticism about the course of the European Union. In other words, approval by the European citizen of justice and home affairs cooperation has become a necessary ingredient in the political justification of the European Union. A major problem in persuading citizens is, however, the division that runs through the entire Third Pillar: on the one hand, Justice and Home Affairs Cooperation aims at encouraging the free movement of persons, thereby promoting the abolition of passport controls and guarding citizen's rights, and on the other hand, the Third Pillar aims at providing a coherent security regime that compensates for the loss of security through the abolition of frontier controls.

Leaving these more philosophical reflections aside, we should return to the list of Third Pillar activities undertaken during 1995. Following a request from the Brussels European Council on 10 and 11 December 1995, the JHA Council drafted a report outlining achievements in its field.¹⁹ In the field of migration, experts began work on a draft 'common position' on the situation of unaccompanied foreign minors in the EU Member States, relating to admission criteria. This activity is relevant for instance for schoolchildren travelling from Germany to Belgium, the group including both German and non-EU (e.g. Turkish) citizens.²⁰ Work has also been done on readmission clauses and criteria for repatriation, and on the fight against illegal unemployment of third country nationals. On 10 January of this year, the JHA Council published its recommendations to the Member States on 'harmonizing means of combating illegal immigration and illegal employment' and improving relevant means of control, such as identity checks, the granting of residence permits, etc. It also includes a recommendation that each Member State should create a central index on foreign nationals, containing information on their administrative situation. Furthermore, the JHA Council recommends concerted action and cooperation in the carrying out of expulsion measures.²¹

In the field of external borders, not much has happened. The Council has established that certain issues remain to be resolved, including the determination of borders, territorial implementation (including the Spanish-British dispute about the status of Gibraltar), the terms for adopting implementation measures and, naturally, the competence of the European Court of Justice. The Member States are working on an initiative of the Spanish Presidency for a 'joint action' for the completion of a uniform visa model.²² In the field of asylum a 'joint position' concerning the harmonized application of the definition of the term 'refugee' has been defined within the JHA Council at its meeting on 23 November 1995. The launch of this joint position has caused considerable unrest in the Member States of the European Union, pertaining mainly to criteria for the recognition of refugees. Although the definition in the joint position does not go beyond the scope of the terms laid down in the Geneva Convention, there was debate about whether being prosecuted by non-state authorities or organizations also constitutes a reason to be acknowledged as a refugee. 'Eurodac', a Europe-wide system for the exchange of fingerprints of asylum seekers, has been declared technically feasible but legal, financial and technical aspects are to be further analyzed. The working group on migration has also done work on false documents ­ the members have exchanged technical information about how to combat fraudulent or counterfeit documents.

Activities falling under the remit of the Security, Police and Customs Steering Group have been rather wide-ranging, varying from a discussion about the exchange of operational information on Muslim-fundamentalist terrorism to the launch of a European Union-wide strategy against drugs (see below). International organized crime is still on the agenda, but the Member States have apparently given up on the idea of establishing a common definition of organized crime. Focus on organized crime is moving into areas such as art and antiques theft, money laundering, counterfeit, stock market fraud and credit card fraud. These issues have been on the agenda for quite a while. One may also observe an extension of the agenda of the now demised Trevi working groups, as the fight against violence during sporting events, the creation of a joint intelligence system for the management of crisis situations, police training on racism and xenophobia, police structures, racism within police organizations and violent urban gangs are subjects under discussion. The fact that police and judicial cooperation under the Third Pillar umbrella are also moving into the field of undercover or proactive policing is evident from activities of the 'Scientific and Technical Policy Group', which analyzes the implementation of the recommendation on the legitimate interception of telecommunications, and the Judicial Cooperation working group, which has drawn up a questionnaire for the Member States on witness protection programmes. The two most important areas with which the Judicial Cooperation Working Group has concerned itself are extradition and protection of the Community's financial interests. The Working Group is still drafting a convention on making extradition procedures between the Member States more flexible; a completed draft will be presented at the end of the first half of 1996. A Convention on the protection of the Community's financial interests was signed on 26 July 1995, and the competence of the Court of Justice to rule in prejudicial questions is being examined by 14 delegations. A draft protocol on the Convention on the fight against corruption of European and national officials and members of Community institutions was approved by 14 delegations in July 1995.

Although this list is not exhaustive, it reveals enough to illustrate the wide range of activities with which the Steering and Working Groups have concerned themselves. For politicians, operating either at national or at European (Union) level, it is hard to keep track of these developments, which renders the execution of effective democratic control virtually impossible. An important question is whether there is sufficient coherence between all these different policy proposals. There is a shimmer of hope in some areas. An example is the Madrid report on drugs, which was presented by the General Affairs Council to the Madrid European Council, and which basically lays down a horizontal action plan for the fight against illegal drug trafficking.²³ The report embodies an acknowledgement of the fact that the distinction between the three pillars of the EU can be counterproductive in areas like drugs. It is certainly to be hoped that cross-pillar action programmes will also be developed for the free movement of persons (in particular visa policy), fraud and customs cooperation, because these matters of common interest show overlap with the First Pillar. Terrorism and racism/xenophobia are definitely issues that link the Second Pillar on Common Foreign and Security Policy and the Third Pillar, and should be dealt with accordingly.

Concluding Remarks

It is evident that the overlap between the Pillars of the TEU may result in considerable coordination problems. The IGC may offer a (partial) solution by reforming the constitutional and institutional structure of the EU, but beyond the IGC there is a vast spectrum of other problems. These include enlargement of the EU, which for instance will bring about significant changes in the external borders situation, the asylum policy (in particular readmission agreements) and the multiplication of law enforcement cultures, standards and practices, to name but a few. The merging of internal and external security concepts, already demonstrated by the acknowledgement that international organized crime, international drug trafficking, the arrival of refugees and organized international xenophobia can have profound ramifications for the stability of the nation-states within the European Union. Sovereignty and subsidiarity may continue to be obstacles to a more far-reaching system of judicial cooperation between the Member States and to the promotion of trust in supranational bodies such as the Europol Drugs Unit. Long-distance law enforcement control without the citizens' consent may jeopardise the social legitimacy of this newly developed system of Justice and Home Affairs Cooperation.

_______________________________________________________

NOTES

¹ This organizational chart is largely modelled on that of Michael Niemeier, 'The K.4 Committee and its Position in the Decision Making Process', in Roland Bieber and Joerg Monar (Eds.), Justice and Home Affairs in the European Union. The Development of the Third Pillar, European Interuniversity Press, 1995, 321-331, at p. 331.

² The Coordinating Committee replaces the former 'coordinators group', which was responsible for drafting the Palma document that outlined measures to be implemented for the free movement of persons.

³ This Steering Group replaces the former Ad Hoc Group Immigration.

⁴ This Steering Group replaces the former Trevi Group.

⁵ Centre for Information, Reflection and Exchange on Asylum Matters and Centre for Information, Reflection and Exchange on Crossing of Borders and Immigration.

⁶ Philip Meyers, 'The Commission's Approach to the Third Pillar: Political and Organizational Elements', in Roland Bieber and Joerg Monar (Eds.), Justice and Home Affairs in the European Union. The Development of the Third Pillar, European Interuniversity Press, 1995, 277-300, at p. 277.

⁷ Joerg Monar, 'Democratic control of Justice and Home Affairs: The European Parliament and the National Parliaments', in Roland Bieber and Joerg Monar (Eds.), Justice and Home Affairs in the European Union. The Development of the Third Pillar, European Interuniversity Press, 1995, 243-257, at p. 246 and 247.

⁸ The Parliamentary Committee on Civil Liberties and Internal Affairs of the European Parliament will submit a draft resolution and a report to plenary calling on national parliaments to proceed without delay in the ratification of the Europol Convention, to call ­ in the framework of the ratification procedure ­ for the Court of Justice to be granted prejudicial decision-making powers, and to undertake that Europol can begin work as soon as possible. Source: Agence Europe, No. 6659, p. 10, 3 February 1995, 'EU/EP/Europol: Confirmation of British refusal concerning the powers of the Court of Justice over Europol leads the EP Rapporteur to Recommend that the 'European Police Force' (that citizens support) become operational without waiting for a solution to this problem'.

^{9 Agence Europe}, No. 6655, 29/30 January 1996, p. 10: 'EU/Internal Affairs/Justice: Mrs Gradin says the Europol Convention can be ratified before the Legal Dispute is settled ­ Mr Coronas confirms launch of Europol's Anti-Drug Unit ­ Towards a Declaration on Organized Crime?'

¹⁰ This article states that, without prejudice to Article 220 of the Treaty establishing the European Community, the Council may draw up conventions (....), which may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down.

¹¹ David O'Keeffe, 'Recasting the Third Pillar', in Common Market Law Review, 32, 1995, 893-920, at p. 898.

¹² E.g. the Dutch government in: Nota inzake Europese samenwerking op het gebied van Justitie en Binnenlandse Zaken, 18 May 1995, TK 24 167; COREPER to Council (8221/95; Bruxelles, 16/6/95), 'Meilleure utilisation des instruments du titre VI du Traité instituant l'Union européene'.

^{13 Reflection Group's Report}, SN 520/95 (REFLEX 21) EN.

^{14 Nota inzake Europese samenwerking op het gebied van Justitie en Binnenlandse Zaken}, 18 May 1995, TK 24 167.

¹⁵ D.M. Curtin and J.F.M. Pouw, 'Samenwerking op het gebied van justitie en binnenlandse zaken in de Europese Unie: pre-Maastricht nostalgie?', in SEW. Tijdschrift voor Europees en economisch recht, 43, 9 (September), 1995, 579-605, p. 591.

^{16 Fortress Europe?}, Circular Letter No. 37, September 1995, at p. 3.

¹⁷ COM(95) 346 def. and COM(95) 347 def.

^{18 Reflection Group's Report}, SN 520/95 (REFLEX 21) EN, at p. 16.

^{19 Agence Europe}, No. 6638, 5 January 1996, EU/Justice/Internal Affairs: 'Overview of work in progress, work accomplished and obstacles that remain in areas falling under the Third Pillar of the Maastricht Treaty.'

²⁰ Earlier, a joint action was adopted by the Council on the basis of Article K.3(2)(b) of the Treaty on European Union concerning travel facilities for school pupils from third countries resident in a Member State (Decision 94-795/JAI, OJ No. L. 327, 19.12.1994).

^{21 Agence Europe}, No. 6643, 1996, EU/Justice/Home Affairs: 'Council publishes its recommendations on fight against illegal immigration and employment and on expulsion', at p. 13 (quoting Official Journal No. C/5 of 10/1/96).

²² This should be read against the background of Council Regulation laying down a uniform format for visas (No. 1683/95, 29 May 1995), and the Regulation from the Council determining the third countries whose nationals must be in possession of a visa when crossing the external borders of the Member States (No. 2317/95, 25 September 1995).

^{23 Agence Europe}, No. 6639, 6 January 1996, 'EU/Drugs: The Council Report to the Summit proves that the Monitoring Centre for Drugs and Europol's Drugs Unit have detailed knowledge of the places of production and on the way drugs that are invading the Union arrive here', p. 10-11; see also Agence Europe, Nos. 6640 at 6641.