COMMENTARY

14.  The instruments listed and defined in Article 24 (European laws, European framework laws, European decisions etc) are intended to apply in all areas of the new Constitution, including those which currently fall under the Second Pillar (Common Foreign and Security Policy) and Third Pillar (Cooperation in police and criminal matters). But as the Working Group IX on Simplification recommended, what are now Second and Third Pillar matters could be subject to special rules. Hence Article 31 has been produced. The two "specific characteristics"[9] of Freedom, Security and Justice are (1) operational cooperation and (2) Member States' right of initiative.

15.  Article 31 contains a number of important innovations. First, Article 31(1), second indent, 'constitutionalises' the principle of mutual trust/confidence between the competent authorities of the Member States. The principle of mutual recognition has been "the cornerstone of judicial cooperation"[10] and a fundamental feature of the creation of an area of freedom, security and justice. However, the term 'competent authorities' is potentially wide and unrestricted. So too is the reference to "extrajudicial decisions". Some clarification is needed as to the extent this provision would reach beyond the recognition of judicial decisions and judgments.

16.  Article 31(1) clearly separates legislative measures from operational cooperation. Indeed there would, for the first time, be express reference to 'operational cooperation' between "all competent authorities of the Member States for internal security" (emphasis added). Again the meaning of 'authorities' is unclear but presumably in this context it is intended to cover not only judicial (including Continental-style investigating magistrates) authorities but also police and customs authorities.[11] Most significantly, the Article gives prominence to "operational cooperation", which may be of particular importance in policing matters.

17.  Article 31(2) is also innovative in two respects. First, it implies the establishment of 'evaluation mechanisms' (for more detail see comments on Article 4 below). Second, it provides for an enhanced role for national parliaments, in participating in such evaluation as well as in monitoring Europol's initiatives. We welcome both these developments. We support, in particular, the notion of national parliaments scrutinising the activities of Europol, though as we said in our recent Report on Europol, that scrutiny might better be done by national parliaments working together with the European Parliament so as to avoid unnecessary duplication of work.[12] There is, however, a problem with the language of the second clause of Article 31(2). The words "shall be involved" imply that the new Constitutional Treaty can impose obligations on national parliaments. We therefore suggest that "shall be involved" should be deleted or that "shall" be replaced by "shall have the right to".

18.  Article 31(3) maintains Member States' right of initiative in the field of police and judicial cooperation in criminal matters.[13] But following the Working Group's suggestion, Member States' initiatives would have to have the support of a quarter of Member States. This is a welcome limitation. The "arrangements" are set out in Article 8 (see below).

Article 1:[Definition of the area][14]

The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and taking into account the different European legal traditions and systems. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control based on solidarity between Member States and fairness towards third-country nationals. The Union shall ensure a high level of safety by measures to prevent and combat crime and promote coordination and cooperation between criminal police and judicial authorities and other competent authorities, as well as by the mutual recognition of judgments in criminal matters and the approximation of criminal laws. The Union shall facilitate access to justice, in particular by the free movement of documents and judgments in civil matters based on the principle of mutual recognition. Explanatory note "This Article constitutes the general definition of both aspects of the area of freedom, security and justice: the legislative and the operational. The text is based on the Working Group's final report. The general reference to the principles of subsidiarity and respect for the different legal traditions and systems is included in this provision. The same applies to the reference to solidarity in the field of the common policy on immigration, asylum and external borders. In the field of police and judicial cooperation in criminal matters and judicial cooperation in civil matters, the Working Group - following the Tampere conclusions - decided that the principle of mutual recognition of judgments should be explicitly enshrined in the Constitution. By the same token, and in the light of the Tampere conclusions, it was considered appropriate to add the reference to access to justice."

COMMENTARY

19.  Article 1 reproduces the main elements that constitute an 'area of freedom, security and justice' found in the current Treaties. But some changes have been made. First, there is an express reference to the need to respect fundamental rights and to take account of "the different European legal traditions and systems". This is welcome.

20.  Second, common policies on asylum, immigration and border controls have to be based on 'solidarity between Member States and fairness towards third country nationals'. The issue of solidarity between Member States in this context is not new and was discussed when we considered the so-called Dublin II Regulation.[15] It is also under consideration in the current inquiry by Sub-Committee F into the European Border Guard. The principle of solidarity is also the subject of a separate Article 13, on which we comment below.

21.  Third, Article 1 also makes express reference to the Union facilitating 'access to justice'. The Praesidium justifies its inclusion by reference to the Tampere Conclusions. We note that Chapter VI of the EU Charter of Fundamental Rights may be relevant here, especially Article 47 which contains a broad statement relating to the provision of legal aid. The phrase "access to justice" also appears in Article 12(2), where it seems clear that it is not restricted "in particular" to the free movement of documents and judgments as in Article 1. The implications (most notably financial) of these statements on access to justice may be considerable. We return to this in the context of Article 12 below.

22.  Finally, the Praesidium's Explanatory note makes no mention of the special rights which apply to the UK. The reference in the second paragraph of Article 1, to "ensure the absence of internal border controls for persons", has to be read in the light of the Protocols (described at paragraphs 9-13 above) enabling the UK to maintain its border controls.

9   As the Praesidium's Explanatory note indicates, Article 31 contains two "characteristics specific" to Union policy on Freedom, Security and Justice. This terminology links Article 31 with Article 24 (the legal acts of the Union). See the Praesidium's note to Article 24 (reproduced in our Report on Articles 24-33) and our commentary at paragraph 15 of that Report). Back

10   Presidency Conclusions, Tampere European Council 15/16 October 1999. Back

11   Those currently identified in Article 29 TEU. Back

12   Europol's role in fighting crime (5th Report, Session 2002-03, HL Paper 43, at para 40). Back

13   Member States currently have a right of initiative in respect of matters falling under Title IV TEC (Visas, asylum, immigration and other policies related to the free movement of persons). That right is presently shared with the Commission. From 1 May 2004, the Commission has the sole initiative as regards those matters. See Article 67 TEC. Back

14   The Praesidium notes that since the articles in Part Two of the Constitution will have no headings, the headings in square brackets are given simply as an aid to Convention members at this stage, but will disappear in the final version. Back

15   The subject of our Report: Asylum applications: who decides? (19th Report, Session 2001-02, HL Paper 100). Back