12.2: Justice, Freedom and Security: Brief history

(I) Early history

Community developments in the area of "justice, freedom and security" prior to the Maastricht Treaty were essentially informal and incomplete affairs. For example, even though the Treaty of Rome (1957) had set the free movement of persons as one of its objectives, progress was slow for the first 30 years.

From 1975 onwards intergovernmental cooperation slowly began to develop outside the Community's legal framework for dealing with immigration, the right of asylum and police and judicial cooperation. The Trevi Group of justice ministers initially met to discuss terrorism and internal security but extended its scope in 1985 to cover illegal immigration and organised crime.

The Single European Act (1986) created a single market based on the four freedoms of goods and services and persons and capital. But in order to achieve "freedom of movement of persons" many internal border controls had to be removed. The Schengen developments were a response to the need for removing border controls, but they were outside the Community structure.

(II) The 1990s

The Dublin Convention on asylum was signed in 1990 and was a considerable step forward in European cooperation.

The Maastricht Treaty (1992) created the inter-governmental Justice and Home Affairs (JHA), as the 3^rd pillar of the EU. The creation of JHA reflected the view that as internal borders disappeared external borders would have to be strengthened.

The Maastricht Treaty designated the following areas, areas of EU "common interest":

Asylum policy and immigration.
The crossing of external borders.
Conditions of entry and movement by third-country nationals, conditions of residence including family reunion and access to employment for third-country nationals and combating unauthorised immigration and residence by third-country nationals.
Combating drug addiction and international fraud.
Judicial cooperation in civil matters and criminal matters. Certain judicial fields were designated as "matters of common interest" requiring cooperation between member states.
Customs cooperation and police cooperation on information exchange within the European Police Office (Europol).

The Treaty of Amsterdam (1997) was another significant treaty in the area of "justice, freedom and security". The changes introduced by the Treaty of Amsterdam were:

It created an "area of freedom, security and justice", which had been referred to in the Maastricht Treaty.
It inserted a new title in the treaty: "visas, asylum, immigration and other policies related to the free movement of persons" but rather than being included in Maastricht's 3^rd pillar, they were placed under the, expanded, 1^st pillar. In addition, judicial cooperation in civil matters came under the first pillar.
Police and judicial cooperation in criminal matters, however, remained under the 3^rd pillar.
It brought the Schengen Convention into the framework of the EU (1^st pillar).
The Maastricht notion of judicial cooperation in matters of "common interest" was escalated to cooperation in matters needing "common action" requiring some "approximation of rules". It also boosted the areas of "common interest" and established a legal requirement for closer cooperation between member states' police and judicial authorities to combat and prevent racism, xenophobia, terrorism, organised crime, trafficking of persons and offences against children, drug trafficking, corruption and fraud. The racism and xenophobia issues were included in the 3^rd pillar on the grounds that these were criminal matters.

Following Amsterdam there were the following developments:

The Cardiff European Council (June 1998) resolved to establish a European Judicial Network (EJN).
The Vienna summit (December 1998) endorsed improved cooperation between national judicial and police authorities, a more effective Europol and an overall strategy on migration, asylum and the reception of refugees. The "Vienna Action Plan" was the outcome of the deliberations.

The European Council's special meeting in Tampere (October 1999) discussed how the area of "freedom, security and justice", as envisaged by Amsterdam, could be established. The outcomes were:

The areas of freedom, security and justice were defined as:

"Freedom": encompassed the freedom of persons, human rights, measures taken against discrimination, visas and the freedom of movement of persons and questions with a bearing on asylum and immigration.
"Security": covered measures taken against organised crime and terrorism, fraud and drug-trafficking.
"Justice": is concerned with equal access to justice, judicial cooperation, the cross-border enforcement of judgements in civil matters, the definition of particular categories of offence and the sentences such offences carry, and mutual assistance in criminal matters.

The issue of "open and secure borders", ensuring that the EU remained compliant with the Geneva Refugee Convention and other relevant human rights instruments, was discussed.
Agreement to set up "Eurojust" - with powers to combat cross-border organised crime.
Agreement to establish the European Police College (CEPOL).
Reinforcement of the Amsterdam Treaty on asylum and immigration.
A Convention was adopted in May 2000, following Tampere, on "mutual assistance in criminal matters" between the criminal authorities - the police, the judiciary and also the Customs and Excise.

(III) The 2000s

The Treaty of Nice (2001):

Included an extension of QMV to asylum issues, civil law, the free movement of legal third-country nationals, frontier controls, illegal immigration and repatriation.
Provided the legal base for Eurojust.

At the Laeken summit (December 2001) key issues included:

Agreement on the European Arrest Warrant (EAW).
Discussion of initiatives on combating terrorism in the wake of the terrorist attacks in New York on 11 September 2001.

Subsequent developments included:

The Commission presented a proposal for a "Council Framework Decision" on the European Evidence Warrant (EEW) in November 2003. It was agreed in June 2006.
Following the terrorist attacks in Madrid in March 2004, the EU stepped up its moves towards a common approach to combating terrorism. The post of the EU's Counter Terrorism Coordinator was created in March 2004.
At the June 2004 European Council the EU's "Action Plan on Combating Terrorism" met with approval.

The "Hague Programme" was presented by the Dutch Presidency (October 2004) for the years 2005-2010. In May 2005 the Commission produced a road map for implementing the Hague Programme with 10 priority areas. The priority areas were:

A Common Asylum Area: a Common European Asylum System, with a view to adoption by 2010.
Migration management: developing a Common EU Immigration Policy, including countering illegal immigration.
The fight against terrorism. The Hague programme highlighted the following key needs in dealing with terrorism:

The availability of police information between all EU countries.
The need to address the factors that contribute to fundamentalism and the involvement of individuals in terrorist activities.
The need to make greater use of Europol and Eurojust.
The need to ensure greater civil and criminal justice coordination across borders and the full application of the principle of mutual recognition.

Internal and external borders including visas.
Integration of migrants.
Privacy and security in sharing information.
Fight against organised crime.
Civil and criminal justice.
Freedom, security and justice: reviewing the policies and assessing achievement of objectives.
Fundamental rights and citizenship.

RL, February 2007