FECL 45 (July 1996):


One of the more important issues discussed by the Intergovernmental Conference (IGC) of the governments of the EU member states is the future form of Justice and Home Affairs (JHA) co-operation. There is broad acceptance that Union action on JHA affairs "needs to be made more effective". A chapter of the ‘Progress report’ on the IGC of 17 June relates the current state of discussions.


Objectives and scope of JHA

There are two complementary avenues which are being considered:

- clarification of the objectives assigned to JHA (these are not defined by the Maastricht Treaty (TEU) at present.

- an extension of scope by adding new areas to the list of "matters of common interest" currently listed in Article K.1 of the TEU. In particular, mention has been made of harmonisation of policies to combat crime, harmonisation of rules on the conflict of laws, the fight against racism and xenophobia and action to combat corruption on an international scale.


Methods of action

In the Presidency’s view, existing methods could be adjusted as follows:

a) partial incorporation into the Community sphere: the most suitable areas would be: visas, asylum and immigration;

b) the use of certain Community methods and mechanisms (a non-exclusive right of initiative for the Commission; majority voting, possibly with the introduction of a super-qualified majority; role of the Court of Justice; closer involvement of the European Parliament, which, in the view of some, could extend to mandatory consultation); this approach, called creation of a "new third pillar", should be supplemented, "in the view of some", by giving a more important role to national parliaments.

c) strengthening the co-operation arrangements provided for in Title VI of the TEU, without fundamentally changing their nature or scope.


Decision-making process and instruments

With a view to improve the process of preparing JHA decision which has been widely criticised for its awkwardness, their are suggestions for the removal of the K.4 Committee and/or the three Steering Committees. Some also favour changes to the K.4 Committee (e.g. members permanently in Brussels).

Member States appear to agree that the legal instruments provided for in Title VI (on JHA co-operation) of the TEU are "not well suited to the essentially legislative nature of JHA action". The idea of creating a new legal instrument, which might be called a "common measure", has been generally welcomed. A "common measure", like a Community Directive, would commit member states to achieving certain results, leaving it to the national authorities to decide on ways and means. Questions have also been raised about the co-existence of "joint positions" and "joint actions", two instruments whose legal implications are subject to differing interpretations.

It has also been emphasised that "any progress on JHA depends on giving a direct role to national parliaments, who alone are capable of giving Union action the legitimacy required in such politically sensitive areas". However, more detailed proposals to this effect mentioned in the report indicate, that the participation of national parliaments would be limited to giving "advisory opinions".


Judicial Control

According to the Presidency, initial discussions show that the Court of Justice should retain compulsory jurisdiciton over disputes concerning the application of conventions and for interpreting their provisions, as well as in respect of legislative acts adopted under Title VI.

Some states are, however, said to favour a case-by-case approach, both for conventions and for other legislative acts.


International co-operation

The report notes that "the desirability of a specific provision on this point is linked to the debate on the Union’s legal capacity".


Closer co-operation

The problem of how to preserve the consistency of the Union’s action without preventing those member states wishing to increase co-operation more quickly to do so, is also being discussed. Various solutions have been considered, in particular:

a) an "enabling clause" opening the door to closer co-operation between interested member states, on the understanding that it would always be open to any member state to join in the closer co-operation;

b) incorporation of the "Schengen" system into the institutional system of the TEU.


Source: Progress Report on the IGC of the Representatives of the Governments of the member States, The Presidency, Brussels, 17.6.96, CONF 3860/1/96 REV 1 LIMITE.