Formandskabets note om et nyt arbejdsprogram for RIA

NOTE

INTRODUCTION

I GENERAL ORIENTATIONS

Much has been achieved since the adoption of the Tampere programme in 1999. The evaluation of the programme shows that in the past few years a good deal of attention has been devoted to creating a legal framework for the various aspects of the area of freedom, security and justice. However, even more will have to be done in the coming years. The legal framework will have to be implemented and put into practice, there will have to be closer practical and operational cooperation, the accession to the Union of ten new Member States will have to be accommodated, and possible new challenges will have to be faced. In particular, the threat of terrorist action will continue to be a priority item. The next phase of asylum and immigration policy (as outlined in the Constitutional Treaty) should be initiated.

In the past five years, important steps have been taken towards strengthening the area of freedom, security and justice. Further details of this area will have to be worked out in the coming five-year period. Although the Constitutional Treaty stipulates that it will only enter into force on 1 November 2006 if all the instruments of ratification have been deposited, the political momentum and the firmer legal basis it creates for the various policy areas should already be taken into account. The prevention and repression of terrorism will remain a major political objective in the next years, and one that will require specific measures. Finally, the integration of ten new Member States, with their own challenges and legal and judicial traditions, into the existing institutional and policy network of cooperation will be a major challenge for the further development of an area of freedom, security and justice in the coming years. In all policy areas, attention should be given to stronger and better coordinated external action.

There is little point in trying to indicate what the area of freedom, security and justice will ultimately look like. Like national legal and judicial systems, this will continue to be ‘work in progress’. Nevertheless, in the coming years substantial steps will have to be taken towards creating a European legal and judicial system based on the rule of law, the protection of fundamental rights and respect for the diversity of legal and judicial traditions in Europe, in which the following needs are met:

• adequate access to justice and protection of rights;
• a coordinated, cohesive judicial system for civil and commercial matters that ensures effective jurisdiction and execution of judgements;
• effective capacity to regulate cross-border movement of persons and international order;
• the power to protect against external and internal threats to security and to public and legal order;
• integrated capacity to fight organised crime and cross-border crime despite jurisdictional limitations and procedural obstacles, as well as closer cooperation and more effective coordination.

In all policy areas, the need for (a) adequate and timely implementation and (b) greater practical cooperation should be emphasised. The Treaty establishing the European Community provides for measures to address inadequate implementation in the areas falling within the scope of Title IV of the Treaty, border controls, asylum and immigration and cooperation on civil law matters, but Title VI of the Treaty on European Union, which covers police and judicial cooperation on criminal matters, does not include a similar system of checks and penalties.

It would seem vital in the short term to develop practical methods that will facilitate timely implementation of measures based on the Treaty on the European Union. Measures requiring national authorities’ resources could be accompanied by proper plans to ensure more effective implementation. Consideration could also be given to letting the length of the implementation period be more closely related to the complexity of the measure concerned. Regular progress reports during the implementation period could serve as an incentive for national action by Member States. In particular, a monitoring system enabling the Commission to systematically assess the extent to which national implementing measures conform to the framework decisions could be developed.

As regards the need for closer practical or operational cooperation in all JHA policy areas, the measures required vary.

1 Adequate access to justice and protection of rights

In developing the area of freedom, security and justice, due account will be taken of the Charter as incorporated in the Constitutional Treaty and the Explanatory Notes to it, as well as the European Convention on Human Rights, to which the EU should accede.

Due attention should be given to the collection and analysis of human rights data with a view to monitoring EU policy in this field. In this connection, the existing European Monitoring Centre on Racism and Xenophobia should be transformed into a human rights agency.

Thought could be given to the need for a single overall framework which would take account of specific features and requirements concerning protection of public order and public security and the fight against crime, as well as the need to ensure a high level of protection of privacy. With specific regard to criminal procedure, the development of a shared set of procedural safeguards could help strike the necessary balance between the need to fight crime effectively and the need to protect individuals’ fundamental rights.

In the continuing discussions on the reform of the European judicial system, urgent attention should be given to how the development of an area of freedom, security and justice and of the Constitutional Treaty will affect the case load and functioning of the European Court of Justice.

Much has been achieved through the Tampere programme. The primary goal for the coming years should be to examine how the new instruments are being used in practice. An evaluation of this would provide the necessary input for the preparation of new measures.

More effective, simpler cooperation on civil matters can be achieved by seeking practical solutions to practical problems.

EU workshops on the practical application of legal instruments for practitioners in the Member States would provide appropriate fora for developing such practical solutions. The exchange of liaison judges between Member States would facilitate the implementation of the new European instruments adopted since the Tampere European Council. Promotion of cooperation between members of the legal professions (such as bailiffs and notaries public) could encourage the emergence of best practices. The Union should create a forum for drawing up EU-wide standard terms and conditions of contract law to be used by companies and trade associations in the Union.

Mutual recognition remains an effective means of empowering citizens and enabling them to enforce their rights across European borders, including in matters of family law. Continued implementation of the working programme on mutual recognition will be a main priority in the coming years. Measures to facilitate mutual recognition, such as standardisation of procedures and documents, should be developed.

Minimum standards could be drawn up for aspects of procedural law such as commencement of proceedings, default, execution of judgements and transparency of costs. The use of modern technology for alternative dispute resolution and in cross-border cases could be encouraged by developing an electronic justice programme.

The development of a common frame of reference on contract law would improve the quality of Community law. The quality and coherence of all Community law instruments relating to cooperation on civil law matters could be ensured through more systematic scrutiny by the JHA Council.

There needs to be greater coherence between the EU and international legal order. There could be closer relations and cooperation with international organisations such as the Hague Conference on Private International Law, particularly in order to coordinate initiatives for legal instruments. The EU should take an active part in these fora so as to maximise synergies between these organisations’ activities and instruments.

The Presidency believes that the next phase in the area of border control, asylum and migration includes closer practical cooperation, adequate and timely implementation of measures and further harmonisation of legislation. The general orientations set out in Section 1 are equally applicable to these policy areas. Within the EU there needs to be greater coordination on integration matters.

Five years ago the Tampere conclusions set the stage for the development of a common EU policy on asylum and migration by identifying four key elements of such a common policy. The Presidency believes that these four elements – partnerships with third countries, a Common European Asylum System, fair treatment of third-country nationals and management of migration flows – will remain highly relevant in the coming years.

In this connection, particular attention should be given to finalising existing action plans – including the action plan to combat illegal immigration and trafficking in human beings in the EU as well as the action plans for management of external borders (June 2002) and return (November 2002) – and to tackling other outstanding priorities as reiterated in various European Council conclusions concerning asylum, migration, integration and border control following proposals by the Commission.

The Presidency also feels there is a need to consider whether to take the decision mentioned in Article 67, Paragraph 2 of the Treaty establishing the European Community in order to eliminate the constraints of the present decision-making process.

The aim should be to deal with asylum and migration issues in a common and integrated manner that encompasses all stages of migration. What this means within the EU is a comprehensive approach that takes account of all the phases of the process, i.e. not only entry and admission but also the integration or return of migrants. At the same time, the external aspects of the migration process should be dealt with in all the Union’s external relations.

One of the aims of the Constitutional Treaty is to draw up policies that ensure there are no checks on persons crossing internal borders, regardless of nationality, while ensuring checks on persons and efficient monitoring when external borders are crossed. Border management has an important role to play in averting threats to security and to public and legal order.

In this connection, several issues mentioned in the Commission’s Communication on the assessment of the Tampere programme and future orientations could usefully be addressed. In particular, the operational role of the External Borders Agency should be expanded, with further developments in the field of external border management: coordination mechanisms between Member States should be further developed with the long-term goal of establishing a European corps of border guards to complement national border guards. Possible synergies with other agencies operating at the border should be explored, as should increased cooperation within the new European Neighbourhood Policy. In this connection, the principle of solidarity and burden-sharing (including sharing of financial burdens) between Member States should be fully applied. Priority should be given in the coming years to creating conditions in which internal border checks between the ‘old’ and ‘new’ Member States can be abolished.

As regards the common visa policy, the security of documents and visa stickers, as well as ways to improve consular cooperation, should be addressed. This includes opportunities for common consular activities and further harmonisation of practices. Priority should be given to operationalising the VIS and reviewing the Common Consular Instructions, as well as defining a common approach to the visa facilitation policy in respect of third countries.

The Constitutional Treaty also aims to draw up a common immigration policy that will ensure, at all stages, the efficient management of migratory flows, fair treatment of third-country nationals residing legally in Member States and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.

The Thessaloniki European Council noted that EU policy should contribute as effectively as possible to the new demographic and economic challenges the Union is now facing, and in this connection stressed the need to explore legal means for third-country nationals to migrate to the Union – taking account of Member States’ reception capacity - within the framework of an enhanced cooperation with countries of origin, which will prove beneficial to both sides.

In pursuance of the Lisbon Strategy, and taking account of economic and demographic needs, the EU should therefore take further measures to facilitate the admission of third-country nationals who could play an important part in the further development of the Union’s ‘knowledge-based economy’, while respecting the right of Member States to determine the actual numbers of admissions, as indicated in the Constitutional Treaty. At the same time, the Union could endeavour to draw up common rules for the admission of third-country nationals. In this connection, the exchange of information between Member States needs to be considerably improved.

Furthermore, in order to develop a truly effective common policy that will ensure orderly migration, the following issues should be addressed as a matter of priority: stricter control of illegal immigration into the Union through measures such as preventive checks in closer partnership with third countries, stricter monitoring of illegal employment within the Union and practical cooperation on the return and readmission of illegally resident third-country nationals through all available instruments at EU level.

Another aim of the Constitutional Treaty is to draw up a common policy on asylum, subsidiary protection and temporary protection based on the non-refoulement principle, in accordance with the Geneva Convention and other relevant treaties, so as to ensure that all third-country nationals in need of international protection are granted appropriate status.

To achieve that goal within the Union, a set of common legal standards along the lines of the Constitutional Treaty should be part of the next phase of the Common European Asylum System. The time frame and the need for a gradual approach in drawing up these common standards should be discussed. Partnerships and cooperation with third countries will be an essential part of the external dimension of a common European asylum policy.

Integration of immigrants should become an essential component of a comprehensive EU policy on migration. Cooperation between EU Member States in this field is necessary in order to ensure the fair treatment of third-country nationals and will be a key aspect of the creation of the area of freedom, security and justice. Coordination of national integration policies should lead to participation by all members of society, greater social cohesion and ultimately a sense of European citizenship.

In order to achieve these goals, several steps need to be taken. A comprehensive European framework on integration, linking up several policy areas related to integration, will need to be established. It will therefore be necessary to agree on a common view of future aims for integration policy, as well as on the basic principles underlying such a comprehensive framework. Respect for these basic principles of integration will ensure that initiatives in the various policy fields concerned do not conflict with the general aims of integration, whether at national or at EU level.

Although harmonisation of integration policy is clearly neither possible nor desirable, the Constitutional Treaty mentions the possibility of incentives and support for action by Member States to promote the integration of third-country nationals residing legally within their territories. At the moment, the support required by most Member States is an opportunity to exchange experience in the field of integration and so learn from each other. It will therefore be necessary to set up a platform for discussion at various levels. The National Contact Points on Integration constitute such a platform at administrative level, and could be strengthened. At ministerial level, an annual conference of ministers responsible for integration could be envisaged.

Practical cooperation (including technical assistance) between Member States will be of key importance in all aspects of border control, asylum, immigration and integration. Cooperation between the national authorities responsible for asylum, border control and immigration should be increased in order to develop common analyses and practices. Exchange of information on the practical application of Community legislation will facilitate the application of relevant instruments. Special attention should be paid to data exchange, especially VIS and SIS-II.

In the EU’s external relations, all powers and instruments must be used in an integrated and consistent manner to strengthen equal and effective partnerships and cooperation between the Union and third countries. This should be done with a view to preventing illegal immigration, resolving refugee situations, providing better access to durable solutions in the regions of origin, building capacity in migration and refugee management and tackling the problem of return. At the same time, officials in the EU and the Member States responsible for migration and asylum policy should actively pursue strong and effective working relations with their colleagues responsible for Foreign Affairs and Development Cooperation.