Should Pillar III be abolished and if so how?

Should Pillar III be abolished and if so how?

The creation of an Area of Freedom, Security and Justice is one of the top priorities for the future development of the European Union. In the debate on the Future of Europe, the question is posed about what to do with the present pillar structure which impedes progress in this critical area. In this paper, Cristina Pineda Polo analyses the current situation in Pillar 3, identifies the main problems and looks for possible solutions.

The creation of an Area of Freedom, Security and Justice (AFSJ) is emerging as one of the top priorities in the future development of the Union. Events such as the terrorist attacks of 11 September and the problems of immigration have thrust this issue into the public eye, and it has become one of the central political concerns for European governments. The increasing challenges in this area, such as asylum and immigration, international organised crime, terrorism, racism and xenophobia, make the revision and clarification of the current structure for deciding EU policies in these areas an urgent necessity. All of this will require a clear framework for cooperation, along with the assurance that the rule of law is respected and fundamental rights are protected. As long as the current complex structure exists, the EU will remain a non-credible entity in the eyes of the international community and the eyes of its citizens.

The aim of this paper is to analyse the current situation in pillar 3, identify the main problems and look for possible alternative solutions. Questions to be looked at include the current division of competences, unanimity in decision-making, right of initiative, democratic and judicial control, and flexibility in Pillar 3.

The main problems and shortcomings outlined in this paper can be summarised as follows:

• Lack of transparency and comprehensibility.
• Slow and cumbersome decision making process (where unanimity and shared right of initiative between Commission and Member States apply).
• Lack of democratic control (European Parliament (EP) marginal competence reduced in the best of the cases to a consultative role and the small scope for review for the European Court of Justice (ECJ) – Article 35 restricts jurisdiction for ECJ.
• Lack of clear political objectives and political mandates.
• Inefficient legal instruments.
• The complex provisions on flexibility.

1. Key Recommendations

These are problems that must be solved if we want to create a veritable AFSJ. To attain this objective the following key recommendations should be taken into account:

1.1. A clear division of competences in which the principle of subsidiarity remains the cornerstone.

1.2. In some areas it will be necessary to move faster than in others. It will be very important to establish priorities, and in some cases it could even be useful to set deadlines. QMV will have to be applied to some areas, if not immediately then after a transitional period. However, unanimity will have to be retained for particularly sensitive policy domains including some aspects of police cooperation. Different national cultures in police and judicial systems make this field highly sensitive, and these differences will only increase in an enlarged Union.

1.3. The application of the community method should be extended as far as possible. However, it cannot be taken for granted that Member States will be prepared to easily accept an extension of Union competences in this area. If this is the solution eventually adopted by the 2004 Inter-Governmental Conference, it can be expected that transitional periods will be established, permitting a gradual application of the community method and Member State’s “psychological ” preparation. Moreover it is likely that the community method will be combined with some degre e of flexibility in specific areas.

1.4. Similar results would be achieved through dismantling the cumbersome and obscure pillar structure and applying different procedures depending on the required level of ‘intensity’ of European intervention. This solution has the advantage of shaping a single institutional framework and increasing the transparency and simplicity of the system.

1.5. It is to be acknowledged that a limited range of issues, particularly in the field of police and judicial cooperation in certain matters, cannot be managed through binding instruments. Where this is the case, Member States’ cooperation should be enhanced by exchanging best practices and applying peer review in the pursuit of shared objectives

Present situation

2. This area has for many years been based on secrecy and on ad-hoc cooperation organised between Member States. To deal with these questions, the Maastricht Treaty created the Third Pillar and for the first time introduced law-making structures based on intergovernmental cooperation. This was a very strong sign that Member States wanted to cooperate in this area, without fully transferring sovereignty. In more recent times, the need for cooperation has grown stronger, and in 1999 with the Treaty of Amsterdam, a first big step was taken, when four areas were transferred from the so-called Pillar 3 (Justice and Home Affairs – JHA) to Pillar 1 (The Community Pillar): Asylum, immigration, external border control and judicial cooperation in civil matters. Pillar 3 was reduced to a single highly sensitive area: Police and judicial cooperation in criminal matters. Therefore, Pillar 3 is currently composed of:

• Police cooperation: this involves operational cooperation, data collection, etc.
• Judicial cooperation in criminal matters: this includes common action in cooperation between judicial authorities, facilitating extradition, preventing conflicts of jurisdiction and establishing minimum rules related to the constituent elements of criminal acts.

Possible alternatives

3. Within the context of the debate on the Future of Europe, the question that arises is what to do with what remains of Pillar 3. On 6 June, members of the Convention met to discuss JHA and the creation of an AFSJ. In this debate there was a high degree of consensus that the current division into pillars impedes progress in this area, and many voices asked for the communitarisation of Pillar 3. Due to the complexity of the subject the Presidium of the Convention decided to establish a new working group on JHA that will begin to work in September.

4. In this context, it is debatable whether everybody means the same thing when speaking of the “communitarisation of Pillar 3”. Important questions are whether communitarisation is the best solution for the remaining pillar 3 or to what extent we should further communitarise Pillar 3. It could be argued that it is not important whether Pillar 3 is communitarised or not: what is necessary is to provide it with an efficient decision making procedure and to eradicate the existing democratic deficit. At the same time, it seems to be more and more difficult to justify the EC/EU division and the pillared structure, especially now that we want Europe to become closer to its people. Thus, it could be necessary to get rid of the entire pillar structure and look for a new and imaginative solution. Having said this, there are three possible options:

• To communitarisation the remainder of Pillar 3.
• To keep the three-pillar structure, gradually transferring some pieces of Pillar 3 to Pillar 1.
• To merge the three pillars. The Commission follows this line, with its proposal of “different levels of intensity of European intervention”. The idea is to create a Fundamental Treaty that allows for different policies and different procedures depending on the level of European intervention that it is needed in any particular area. Therefore different levels of intensity within the same political field are also possible. The result is that the overall structure of the Union would change. To achieve this, it would be necessary to define who should do what in each area, and decide which policy fields need full legislative competence, and which just an exchange of best practices or other methods of cooperation.

Since the possibility of a gradual transfer of only some parts of Pillar 3 to Pillar 1 would not solve the problems, the choice should be between options 1 and 3. It is difficult to justify the preservation of a downsized Pillar 3, merely containing bits and pieces of different policy domains.

Against the background of this “systematic choice”, a number of more specific, but fundamental matters need to be addressed to shape a workable institutional arrangement and boost the EU in JHA:

Division of Pillars

5. The division of JHA between Pillar 1 and Pillar 3 is artificial, creating tension and uncertainties with regards to the division of powers between the Community and Member States. It also creates problems concerning the allocation of legal basis. There are still many difficulties on the threshold between community and intergovernmental action. For example, in the fight against drugs, some areas such as police cooperation and extradition are covered by Pillar 3, however customs cooperation is under full community competence. The same applies in the fight against fraud. The bottom line is that it is not possible to take measures based partly on Pillar 1 and partly on Pillar 3, and this is a real problem in an area where everything is interlinked. A Directive or a Regulation based on two pillars is not possible. Putting everything under the same heading would solve this problem for the allocation of legal basis.

6. Sometimes the Member States do accept the competence of the EU to act, but problems arise upon deciding whether this should be done through a Pillar 1 or a Pillar 3 instrument. On such occasions Member States do not dispute that Europe has to act, but they prefer to do it under Pillar 3 to keep a stronger position for themselves. This was clearly demonstrated last year, when deciding on criminal penalties for breaches of environmental rules. Member States were pushing to approve a framework decision proposed by Denmark, whilst the Commission had proposed a directive to deal with the matter. Finally the framework decision against the use of a community instrument was adopted. Most recently, there has been disagreement between the Commission and Member States over how to outlaw racism across the Union. Member States are insisting that measures of criminal law on racial discrimination should be third pillar instruments, whereas the Commission is arguing that the Racial Equality Directive obliges Member States to consider incitement to discrimination as a crime.

Unanimity = weakness

7. Unanimity, which currently applies in decision making to all policies areas covered by Pillar 3, appears to be one of its main weaknesses and its application should be limited to a very narrow set of decisions. The situation under the community pillar is not much better since, although some policy areas have been communitarised, there is a five-year transitional period during which unanimity applies. The eventual application of the co-decision procedure under Article 251 requires a decision by unanimity. It is possible to say that unanimity is one of the main reasons for the lack of progress in creating an AFSJ, and use of unanimity should be drastically reduced in the future.

8. However, there may be some policy areas for which there is no need for a total transfer of sovereignty, where only some form of cooperation (such as exchange of best practice) is required. In these areas, it might also be necessary to keep unanimity to meet the concerns of Member States an d convince national governments to deepen cooperation in sensitive fields. It must be taken into account that in an enlarged Union it will become increasingly difficult to create any kind of consensus. The scope of unanimity must be reduced in the future; otherwise the Union will not be able to develop necessary initiatives. In an enlarged Union, unanimity will be a synonym for paralysis.

9. In this context, police cooperation emerges as an area in which specific procedures, including unanimity, could apply. However, this does not contradict the idea of communitarisation or the possibility of putting everything under the same overarching institutional structure. In these cases, articles such as Article 33 (containing an exception based on public order and security concerns) will have to be maintained.

10. In any case it is important to note that when there is “real political will” unanimity is not an insurmountable problem. The quick adoption of the European Arrest Warrant, tabled by the Commission for a long time before the 11 of September, and the progress achieved in the communitarised judicial cooperation in civil matters, where unanimity also applies, have proven this.

Right of Initiative 

11. Under the present system, the right of initiative is shared between Member States and the Commission. As a result of this, there is a large number of initiatives coming from Member States. The volume of texts produced in the whole area of Justice and Home affairs exceeds the total volume of texts produced in Pillar 1, excluding agriculture. Many of these initiatives reflect internal problems and are not of high quality. For the moment, the development of this area very much depends on proposals that are brought forward by Member States, normally during the presidencies, in response to a particular set of interests which are often not in line with the Tampere objectives or timetables. The monopoly of initiative should be in the hands of the Commission, whose initiatives generally show more reflection and look for a common European interest. In case this is not immediately possible or Member States insist on retaining a shared right of initiative for a transitional period, a mechanism to properly check Member State initiatives would be necessary, or the Commission should participate in some way when Member States are preparing a proposal. It is no longer acceptable that Governments try to accomplish national programmes to satisfy their priorities through rotating presidencies.

12. On the other hand, it could be argued that it would be advisable to keep Member States’ right of initiative in those areas which are deeply rooted in national traditions where the Commission lacks expertise and Member States are better prepared. In this sense it would be advisable to give Member States the possibility to be associated to a longer extent with the works of the Commission for some input or to keep a shared right of initiative and to install a mechanism that permits the Commission to check the consistency of Member States initiatives with the Tampere objectives.

13. The amount of initiatives proposed over the past few years is an additional complication. In reality a disproportionately small number have been approved. In terms of manageability, it is not easy for the staff working in the institutions to deal with such a large amount of legislation. Furthermore, an enormous amount of soft law is also produced as for instance in the area of combating drugs (e.g. rules for reporting drugs seizures). This soft law can be published if the Council decides so, which is the case for soft law of general importance, however, there are a considerable number of conclusions and recommendations that are never published.

Legal Instruments in Pillar 3

14. Competences and objectives in JHA are defined in a very vague manner. Under pillar 3, requirements for legislative approximati on are quite ambiguous, and the new treaty should indicate what kind of instrument the Union should use depending on the area, since not all type of actions are required in every area.

15. Furthermore, current legal instruments in Pillar 3 are not efficient. Conventions have a very long ratification process, whilst decisions and framework decisions are binding on Member States but lack direct effect. There is also an additional problem of state liability. The Commission does not have the right to start infringement procedures and therefore the implementation of legal texts cannot be enforced. It is necessary to establish a procedure similar to that established in Article 226, allowing the Commission to bring Member States before the European Court of Justice (ECJ). This is also connected with the question of mutual trust. One way of enhancing trust between Member States is giving the Commission the possibility of bringing procedures against those not complying with rules.

16. One example of this are the framework decisions, whose effects are similar to those of directives: they are binding on Member States but they are deprived of direct effect. Recently the European Arrest Warrant has been adopted as a framework decision. A strict and timely implementation is vital to the success of Pillar 3 instruments. The European Arrest Warrant in particular, needs to be implemented in a short period of time. In this sense it is crucial to check whether a Member State has implemented or not a Pillar 3 instrument and whether the entire range of instruments adopted under Pillar 3 is applied correctly in practice. Since rights of citizens are directly implicated it is important to check if this entire pillar 3 instrument are being correctly implemented and its lack of direct effect will create problems in the future.

17. As argued before, unanimity is one of the main impediments for making progress in building a veritable AFSJ. However, if unanimity is maintained, it would be necessary to use alternative instruments. In this context the open method of coordination would probably have an increased role in the future. In it, an open procedure for coordination of policies is established which allows progress in realising common objectives through the accomplishment of guidelines issued by the Commission. The advantage of the open method of coordination is that, unlike other instruments such as enhanced cooperation, it does not break up the common approach. However, this method is not legally binding and it only gives guidelines.

18. Other instruments such as exchange of best practices and creation of joint teams, have proved to be very useful in this area and their use will probably be increased in the future.

Democratic control is essential

19. Democratic legitimacy, clarity and transparency are essential for citizens, particularly in this area. It is therefore necessary to bring an end the democratic and legal deficit as well as the low levels of transparency that still exist in pillar 3; all of which deficiencies that are emphasized by the marginal role given to the ECJ and European Parliament (EP). There is limited democratic control and not enough accountability in Europol, and some legal instruments do not even require consultation with the Parliament. Whatever solution is taken in pillar 3, the role of the European and national Parliaments in this area needs to be revised and enhanced in order to allow for better scrutiny of legislation. Co-decision must be extended as far as possible.

Judicial Control

20. Lack of Justiciability is the other question that concerns the democratic deficit in Pillar 3. Judicial control is deficient, complex and has a variable geometry. The ECJ has a very limited competence, and no protection with respect to the activities coming from Europol and Eurojust exists. The resulting deficit in terms of judicial control of EU action under the Treaty on European Union has been severely criticized, and concerns have been expressed about the lack of judicial protection of individuals who might be affected by measures taken in the field of JHA.

21. In pillar 3, the ability of Member States to choose whether or not to accept jurisdiction of the Court (à la carte approach – for the moment 12 Member States have accepted the jurisdiction of the Court) undermines the coherence of the EU legal acquis, and also creates differences within the EU in terms of judicial protection of individuals in JHA. There is also the risk of the creation of differentiated case law. Access to the Court should be the same for all areas under the treaties. In pillar 3, since decisions and framework decisions are excluded from direct effect, individuals will not benefit very much in practice from references to the Court. This has a very negative impact if there is a desire to foster a true concept of European Citizenship. Thus, in the current state of affairs, the interests of individuals are neglected in pillar 3.

Division of Competences

22. Strict application of subsidiary is required in this area. The problems shown in negotiation with Member States might be a sign that the principle of subsidiary is not being applied efficiently.

23. In terms of police cooperation, it is not necessary to harmonise legislation, but simply to make sure that for example criminals cannot take advantage of open borders. Therefore some form of cooperation is needed. Different police cultures, languages, ways of management, and approaches (some countries are intelligence oriented and others are more evidence orientated) make cooperation in this area very difficult. However, exchanges of the best practices have proved to be very useful. The Union should concentrate on enhancing this kind of practices. The current experience of Europol has shown that many Member States are still reluctant to share and provide information within the field of police (this is one of the reasons why the work of Europol is so complicated), which in turn shows that it is necessary to be precise in what needs to be achieved in this field. Having said that, it is also important to note that new trends such as biological and chemical threats and new forms of terrorism (suicide attacks) give a new dimension to this area and increase the need for further cooperation.

24. It is more complicated to establish to what extent it is necessary to harmonise national criminal laws and how to define Union’s competences in this area. One example that illustrates the difficulty in finding the appropriate balance is urban criminality. As this issue should not be dealt with at European level, Europe would not bring any added value through legislation. Harmonisation is thus not necessary. Rather, what is needed in order to deal with the problem is to create a group of experts that regularly exchanges information. However, when it comes to fighting international organised crime, there is an added value in harmonising legislation so that, for example, no-body can escape justice by taking advantage of the freedom of movement.

25. In general terms, therefore, the Union has a role to play in the fight against crime, but its degree of intervention will be different depending on the type of crime. For certain kinds of crime, it is necessary to prevent criminals from taking advantage of the Member States with the lowest penalties. Drug trafficking, for example, is punishable with two years prison in one Member State and with five in another. This makes it clear where traffickers are going to be based. However, for other types of crime (e.g. petty theft), Europe should not stipulate the level of penalties but simply enhance cooperation and the exchange of data and practices. Overall it is generally accepted that the text for EU intervention is the transnational character of crimes.

26. The problem of division of com petences does not only apply at horizontal level, but also at the vertical one: the unclear delimitation and sometimes overlapping competences between bodies such as Europol, Eurojust and Olaf, complicates the situation even more.

Flexibility within Pillar 3

27. The degree of flexibility introduced by the Treaty of Amsterdam, is the result of the opposition of some Member States to the communitarisation of parts of pillar 3.

28. The resulting compromise between different priorities is a complex set of opt-ins and opt-outs policies and the provisions on closer cooperation, with different conditions depending on the Treaty framework. Most of the areas in JHA are interrelated and since what is done in one area has an impact on the rest this makes the structure too complicated. All these new arrangements create a complex framework in an area which high implications for the rights of individuals where simplicity and transparency play an essential role. The opt-in and opt-out policy has proven to be a real problem and it would be very difficult to reconcile it with the idea of moving towards a consistent Constitutional text.

29. The proliferation of opt-ins and opt-outs leads to a very unclear situation as to the actual scope of agreements. In fact, it happens that some decisions to opt-out are converted into requests to opt-in at a later stage. For example, Denmark is currently negotiating an agreement with the EU to adopt instruments in civil cooperation that it was able to adopt because of its opt-out from EU policies in Title IV Treaty on European Union. The signing of this agreement will help to ensure clarity and cohesion within this area, however this is just a provisional arrangement and the best solution would be to end the Danish opt-out.

There are too many conflicts between the opt-ins and the opt-outs and as Schengen has proved, there is always a case for redefining elements. (E.g. Denmark has an opt-in to any measure that extends the Schengen body of law). An additional problem is that, since it is not stated that these derogations are transitional and there is not automatic end for them, they are definitive. All this is very much in contradiction with the idea of creating a Union, which is constitutionally aimed and is more than a classic agreement between States.

30. The mechanism of closer cooperation presents considerably different features. In this case we are dealing with an “inclusive” process, since all states are part of decision making even though they do not participate in the result. They have a specific framework within the Treaty. However closer cooperation should be kept for exceptional cases and not as the rule in order to avoid ending up in a divided Europe. However, if no agreement on QMV is achieved and unanimity is to be the rule in the future, in an enlarged union it is likely that mechanism for flexible integration will increasingly be used. This raises many additional problems such as the redefinition of the provisions on enhanced cooperation in Title VI of Treaty on European Union.  

31. Given the special character of this area, it would be suitable to allow a small group of Member States to go further in areas that can provide citizens with more security, such as in creating a real judicial space or in police cooperation. Some argue that the current number of states needed as provided for in the Treaty (half of Member States in the Treaty of Amsterdam and 8 in the Treaty of Nice) is too high to reach agreement among a small group of states willing to move faster. On the other hand, accepting flexibility as a way of making progress in this area, particularly in an enlarged union, implies the risk of exacerbating the problems of transparency, democratic control and legitimacy.

32. The fact that a big gap with candidate countries could be created as well as their possible problems in catching up with the advanced States also needs to be considered. It is difficult to anticipate where the Union will end up introducing flexibility and if, as argued above flexibility is going to play a crucial role in allowing for progress in this domain, it is necessary to create a regime which is as inclusive as possible and contains bridging mechanism for candidate countries. If flexibility is not regulated in a suitable way, Member States will be always tempted to take recourse to cooperation outside the Treaty framework and further fragmentation will be inevitable.

Conclusion

33. It will not be possible to maintain the EC/EU division and the three pillar structure if we want Europe to be close to its citizens. There is an urgent need to clarify competences in this policy field and to decide on the level of European intervention that is required. In general, further reflection is needed on the interpretation of subsidiarity and in deciding how far Member States should go in this field. Questions such as unanimity, the shared right of initiative and the democratic deficit need to be addressed. The community method still appears as the best solution to achieve concrete policy results under pillar 3. However, given the specificity of this area it can be expected that different procedures would apply to different cases, some requiring retention of unanimity. In this perspective, it is arguable that merging the three pillars and establishing different procedures depending on the required degree of European intervention seems an appropriate solution to allow for real advance in future.

Cristina Pineda Polo is a lawyer and a policy analyst with The European Policy Centre.

For more analyses see The European Policy Centre’s

website.