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Developments in the Area of Freedom, Security and Justice brought about by the Constitutional Treaty

Published online by Cambridge University Press:  06 March 2019

Dagmara Kornobis-Romanowska

Extract

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The main purpose of this paper is to consider the impact of the Treaty establishing the Constitution for Europe (hereinafter: the Constitutional Treaty or CT) on the realization of the Area of Freedom, Security and Justice (hereinafter: the Area or AFSJ). The paper has two parts. The first part deals with the Area in current law, whereas the second part focuses on the provisions of the Constitutional Treaty concerning the Area.

Type
Part III: Sectoral Differentiation in the Constitution
Information
German Law Journal , Volume 6 , Issue 11: The Unity of the European Constitution: 2nd German-Polish Seminar on the Constitutional Law of the European Union , 01 November 2005 , pp. 1623 - 1639
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Treaty Establishing the Constitution for Europe, Dec. 16, 2004, 2004 O.J. (C 310) 1, 47 [hereinafter CT].Google Scholar

2 The CT was initially scheduled to enter into force on 1 November 2006, provided that it would be ratified by all Member States. However, in May and June 2005, France and Netherlands rejected it in referenda and in effect other EU countries had to postpone their ratification procedures. On 17 June 2005 at the meeting of the European Council in Brussels, the Heads of State and Government of the EU have adopted a Declaration on the ratification of the CT (Declaration by the Heads of State or Government of the Member States of the European Union on the Ratification of the Treaty Establishing a Constitution for Europe, Brussels European Council (June 18, 2005)), http://ue.eu.int/ueDocs/cms_Data/docs/pressData/en/ec/85325.pdf.), according to which they have agreed to come back to the CT matter in the first half of 2006. Thus, the future of the CT depends on their assessment of the respective national debates and on the political agreement of Member States on how to proceed.Google Scholar

3 Monar, Jörg, The Dynamics of Justice and Home Affairs: Laboratories, Driving Factors and Costs, 39 J. Common Mkt. Studies 747, 763 (2001).Google Scholar

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8 Id. at para. 3.Google Scholar

9 The Hague Programme: Ten priorities for the next five years The Partnership for European renewal in the field of Freedom, Security and Justice, COM (2005) 184 final (Nov. 4-5, 2004).Google Scholar

10 These driving forces are: Council of Europe, Trevi and Schengen. See Monar, supra note 3, at 763.Google Scholar

11 Monar, , supra note 3, at 760.Google Scholar

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13 Monar, , supra note 3.Google Scholar

14 Monar, , supra note 3, at 763; Władysław Czapliński, Obszar wolności, bezpieczeństwa i sprawiedliwości, Współpraca w zakresie wymiaru sprawiedliwości i spraw wewnętrznych 5 (2005) (about the foundings of the co-operation in justice and home affairs).Google Scholar

15 The Agreement signed in Schengen, Luxembourg, ('Schengen Agreement') on 14 June 1985 by the three States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, and the Convention implementing that Agreement, signed on 19 June 1990 by the same contracting parties; the Schengen Acquis also includes the accession protocols and agreements, both to the Agreement of 1985 and to the Convention implementing it, of other Member States of EU, the decisions and declarations adopted by the Executive Committee set up by the latter Convention, as well as the acts adopted by the organs on which the above mentioned Committee has conferred decision-making powers. A list of the elements which make up the Acquis, setting out the corresponding legal basis for each in TEC or TEU can be found in Council Directives. Council Directive 1999/439 1999 O.J. (L 176) 35 (EC); Corrigendum Jan. 12, 2000, 2000 O.J. (L 9).Google Scholar

16 See Rybicki, Robert, Schengen and Poland, 25 Polish Y.B. Int'l L. 97 (2001).Google Scholar

17 Monar, , supra note 3, at 763.Google Scholar

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20 See European Union Consolidated Versions of the Treaty on European Union and of the Treaty Establishing the European Community Protocol 2, Dec. 24, 2002, 2002 O.J. (C 325) 1 (integrating the Schengen acquis into the framework of EU); see also Antonio Vitorino, Eurpean Commissioner for Justice and Home Affairs, Address to the Royal Institute for International Affairs/ National Bank of Belgium: Models of Co-operation within an enlarged European Union (Jan. 28, 2003), available at http://www:europa.eu.int/rapid/pressReleasesAction.do?reference=SPEECH/03/31&format=HTML& aged=1&language=EN&guiLanguage=en.Google Scholar

21 See Vitorino, , supra note 20.Google Scholar

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23 Its gradual realization is illustrated by the very broad list of acquis of the EU, accepted under the Title IV TEC and Title VI TEU, and consolidated by the European Commission into a complete list. European Commission, DG Justice, Freedom, and Security, Acquis of the European Union (Dec. 2004), http://www.europa.eu.int/comm/justice_home/doc_centre/intro/docs/jha_acquis_1204_en.pdf.Google Scholar

24 Final report of Working Group X “Freedom, Security and Justice,” CONV 426/02 (Dec. 12, 2002).Google Scholar

25 Treaty on European Union, 1992 O.J. (C 191) 1 [hereinafter TEU]. For the system of opt-outs from ECJ preliminary ruling under TEU art. 35 (2); see infra Part C IV this piece.Google Scholar

26 Monar, , supra note 3, at 763.Google Scholar

27 Arts. III-257, 277 CT (set out legal basis for EU action in this area).Google Scholar

28 Art. I-3 CT.Google Scholar

29 Commentary to the Constitutional Treaty, available at http://www.fco.gov.uk/Files/kfile/Commentary_Part2_Parts1-4.pdf.Google Scholar

30 Art. I-14(2j) CT.Google Scholar

31 Art. I-11(2) CT.Google Scholar

32 Art. 29 TEU; Art. II-61 CT.Google Scholar

33 The aspiration of the Member States already acknowledged under the Tampere and The Hague programmes.Google Scholar

34 Art. III-257(2) CT.Google Scholar

35 It corresponds to Art. 29 TEU.Google Scholar

36 Art. 31(1a) TEU.Google Scholar

37 It has been widened: under the existing Treaties these powers applied only to minimum rules regarding constituent elements of crimes and sanctions and only referred to the fields of organized crime, terrorism and drug trafficking; Arts. 29, 31(1e) TEU.Google Scholar

38 Monar, Jörg, Justice and Home Affairs, 42 J. Common Mkt. Stud. 117, 129 (2004).Google Scholar

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40 The Charter however makes no change to the redress procedures provided for by the Treaties, since it opens up no new procedures for seeking redress in the courts of the EU. The problem of the Charter of Fundamental Rights of the EU is very broad and its scope reaches much further beyond the topic of this paper. This is the reason why the Charter, although mentioned, is not discussed in this article.Google Scholar

41 Art. I-43 CT.Google Scholar

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45 See the opinion of Advocate General Ruiz-Jarabo Colomer in Case C-187/01 Gözütok and Brügge, 2003 E.C.R. I-1345, para. 6.Google Scholar

46 Id. at para. 124.Google Scholar

47 Id.Google Scholar

48 Id. at para. 33.Google Scholar

49 Art. I-42(1b) CT.Google Scholar

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51 Program of Measures to Implement the Principle of Mutual Recognition of Decisions in Criminal Matters, 2001 O.J. (C 12) 2, para. 3.Google Scholar

52 Art. I-34(1) CT.Google Scholar

53 It corresponds to the co-decision procedure in Art. 251 TEU.Google Scholar

54 Art. I-34(3) CT; Art. III-396(15) CT.Google Scholar

55 Art. 34(2) TEU (any Member State can make a proposal); Thym, supra note 50.Google Scholar

56 Art. III-258 CT. An example of this role can be seen in the measures of the European Council taken in Tampere (1999) and Brussels (2004).Google Scholar

57 Monar, , supra note 3, at 760 (on the evaluation of the parliamentary control under the current EU law).Google Scholar

58 So called subsidiarity mechanism.Google Scholar

59 Arts. III-260, III-273, III-276 CT.Google Scholar

60 Arts. III-273, III-276(2) CT.Google Scholar

61 Vitorino, , supra note 20.Google Scholar

62 Protocol 34 states that these provisions will only enter into force on 1 November 2009. Before then, the Council will act under the system of weighted majority, as set out in its Art. 2 which is the same as that currently in force under the Art. 205(2) TEC. A definition of a qualified majority within the European Council and the Council is given by the Art. I-25 CT.Google Scholar

63 Arts. III-269, III-270, III-277 CT; Monar, supra note 38, at 130; Thym, supra note 50.Google Scholar

64 Art. III-274 CT.Google Scholar

65 Monar, , supra note 38, at 130; Vitorino, supra note 20.Google Scholar

66 Working document presented by Jean Louis Bourlanges, Working on the conditions for strengthening the effectiveness of the area of freedom, security and justice Committee on Civil Liberties, Justice and Home Affairs, Aug. 18, 2004, available at http://www.europarl.eu.int/meetdocs/2004_2009/documents/DT/539/539389/539389en.pdf.Google Scholar

67 Vitorino, , supra note 20.Google Scholar

68 Art. III-376 CT imposes limitations on the jurisdiction of the ECJ in relation to CFSP, equivalently to the current Art. 46 TEU. However, the ECJ has the jurisdiction to monitor compliance with Art. III-308 CT and to rule on proceedings, brought in accordance with the conditions laid down in Art. III-365(4) CT, reviewing the legality of European decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter II of Title V (Exercise of Union competence).Google Scholar

69 See Tridimas, Takis, CFSP and Freedom, Security and Justice, University of Southampton College of Europe, Mar. 2004, http://www.fedtrust.co.uk/uploads/constitution/05_04.pdf; Thym, supra note 50.Google Scholar

70 Art. 35 TEU.Google Scholar

71 Czapliński, , supra note 14, at 76.Google Scholar

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73 Thym, , supra note 50, at 4.Google Scholar

74 Obszar wolności, bezpieczeństwa i sprawiedliwości, Współpraca w zakresie wymiaru sprawiedliwości i spraw wewnętrznych 53 (2005).Google Scholar

75 Id. at 76.Google Scholar

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