Vol 5 no 1, January-July 2005
Special issue on implementation of the Hague programme
* Introduction to the Hague programme
* General provisions
* Immigration and asylum
* Policing & security
* Civil and criminal law
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IMPLEMENTATION OF THE HAGUE PROGRAMME
Prepared by Professor Steve Peers, Human Rights Centre, University of Essex
The JHA Council meeting on June 2-3 2005 approved a detailed plan for implementing the Hague Programme for the future of EU Justice and Home Affairs, which was approved by EU leaders in November 2004. The Council plan was jointly drawn up with the Commission, which submitted a detailed draft of the implementation programme in May 2005. The purpose of this analysis is to compare the implementation plan to the original Hague Programme, in particular indicating how the EU's Justice and Home Affairs agenda would be developed first by the Hague Programme and then by the implementation plan. Where the Hague programme has already been followed up to some degree, this is also indicated. Also, where the final implementation plan differs from the Commission draft of May, this is noted. For each section, there are comments summarising the changes made (or not made) by the implementation plan to the Hague programme.
It will be seen that the implementation plan for the Hague programme particularly adds to that programme as regards the exchange of information between law enforcement agencies, organised crime (including harmonisation of substantive laws) and criminal justice cooperation (particularly mutual recognition and harmonisation of procedural law). On the other hand, the implementation plan is largely only a clarification of Hague programme plans regarding visas, borders, immigration and asylum, and civil law, and indeed adds virtually nothing to the Hague programme as regards immigration and asylum.
The analysis follows the structure of the implementation plan, which is slightly different from the structure of the Hague Programme. See:
- The Hague Programme, adopted 4-5 November 2004
- Statewatch's Annotated Hague Programme
- Hague implementation plan (9778/2/05, 10 June 2004)
- Commission draft implementing plan (COM (2005) 184, May 2005)
Status quo: There are already existing evaluation mechanisms for the Schengen acquis and for specific areas of police and criminal cooperation, following a Joint Action of 1997 and a decision on evaluating anti-terrorism arrangements. The Commission has a role evaluating implementation of EC legislation by Member States, along with a role evaluating application of EU third pillar Framework Decisions by Member States.
Hague Programme: calls for agreement on implementation methods in 2005; evaluations from 1 July 2005 to follow certain criteria; annual public evaluation report by Commission.
Follow-up: the Feb. 2005 JHA Council held a general debate about the Commission's evaluation reports of Framework Decisions; the June 2005 JHA Council had a specific debate about national implementation of the European arrest warrant
Implementation plan: following Commission draft, calls for proposal in 2006 on evaluation procedures, using specific provision of proposed Constitutional Treaty
Comments: so far it is not clear if the Council has agreed on implementation methods or on how the new evaluation criteria are to be applied. There is no mention of the annual Commission evaluation reports in the implementing plan.
1.2 Fundamental Rights
Status quo: funding by Commission of internal EU human rights projects, including network of independent experts, on a provisional basis; agreement in Dec. 2003 to create an EU human rights agency
Hague Programme: welcomes Commission paper (of autumn 2004) on human rights agency
Follow-up: in April 2005, the Commission proposed permanent funding of internal EU human rights programmes
Implementation plan: refers to: Commission funding proposal on internal EU funding proposals; planned legislative proposal on human rights agency; study on violence against women; communication on rights of the child; two general data protection measures. The plan follows the Commission draft, except the data protection points have been added.
Comments: The funding proposal is not a surprising addition to the Hague programme, since the provisional funding for internal human rights measures will run out soon. The upcoming official proposal to set up the EU human rights agency is not surprising either, given the prior political commitment of EU leaders to set this agency up. The addition of data protection points reflects the takeover of data protection issues by the Commission's JHA Directorate-General. The communication on the rights of the child is a genuinely new addition.
1.3 Court of Justice
Status quo: two sets of complex rules exist limiting access to the Court of Justice, in particular via national courts, in the area of immigration/asylum/civil law and police/criminal law; the Constitutional Treaty would largely apply 'normal' rules to these areas
Hague Programme: calls for Commission to make proposal to amend the Statute of the Court of Justice to deal with references via national courts quickly in this area, in light of the Constitutional Treaty; no explicit date was set
Implementation plan: sets date of 2006 for Commission proposal; the Commission draft had not set a date
Comments: It is striking that the Commission did not wish to set a date for this proposal, despite its support for the extension of the Court's jurisdiction.
1.4 Drugs Programme
Status quo: previous EU action plan on drugs, since replaced from Dec. 2004
Hague Programme: drugs action plan was to be replaced separately from Hague Programme
Implementation plan: follows Commission draft in setting dates for five specific points
1.5 External relations
Status quo: agreement in 2000 on general principles on external relations of JHA
Hague Programme: called for strategy by end 2005
Implementation plan: follows Commission draft in setting mid-2005 date for Commission communication
"FREEDOM" [IMMIGRATION & ASYLUM]
2.1 EU citizenship
Status quo: legislation adopted April 2004 consolidating and enhancing free movement rights of EU citizens and family members; implementation date April 2006
Hague Programme: request for Commission report on Directive with possible proposals in 2008
Implementation plan: follows Commission draft in adding references to reports on earlier free movement legislation (2006) and EU elections legislation (2006), a proposal on diplomatic and consular protection (2007) and on EU citizens' initiatives (2007), as well as a report on possible expansion of EU citizens' rights (2008)
Comments: the implementation plan has made extensive additions to the very modest agenda of the Hague programme in this area
2.2 General asylum/migration/borders policy
Status quo: funding programmes for European Refugee Fund and 'ARGO'; annual reports on migration policy/statistics since 2004; European migration network funded on provisional basis
Hague Programme: vague statements about information exchange and coordination
Follow-up: Commission proposals in April 2005 for four funding programmes; JHA Council of April 2005 asked Commission to propose measure requiring Member States to inform/consult each other on migration policy
Implementation plan: largely follows Commission draft in referring to: four proposals for funding programmes, annual reports on migration statistics; adoption of a proposal on migration statistics; Green Paper and possible proposal to set up migration network officially; proposal on migration policy exchange. The changes from the Commission draft were the addition of the reference to the policy exchange proposal and a more tentative reference to possible legislation on the migration network.
Comments: a lot of concrete detail added to the vague wording of the Hague Programme, although most of these specifics were already in the Commission's 2005 work programme. Note the commitment to adopt the migration statistics proposal.
2.3 Common European Asylum System
Status quo: 'first-phase' legislation adopted 2003-2004 and agreed in principle 2004 (asylum procedures) but not yet adopted
Hague Programme: asked for: Council to adopt asylum procedures directive; Commission to evaluate first-phase measures in 2007; adoption of second-phase measures by 2010; two studies on internal and external joint processing of asylum applications; coordination between national asylum services in 2005; creation of European support office after second-phase measures adopted; proposal in 2005 regarding targeting of European refugee fund
Implementation plan: follows Commission draft in setting a date for the two studies on joint processing (2006), and adding a proposal in 2005 for extending long-term residence status to persons with international protection; but not otherwise amending Hague Programme
Comments: the only addition to the Hague programme is the proposal to extend long-term residence status to refugees and persons with subsidiary protection. This has been planned for some time, and delayed repeatedly by the Commission.
2.4 Legal Migration
Status quo: adoption of legislation in 2003-2004 on some legal migration issues; no agreement on economic migration proposal
Hague Programme: called for policy plan by end 2005
Follow-up: Commission released Green Paper on economic migration in Jan. 2005
Implementation plan: follows Commission draft in adding only assessment and monitoring of the first-phase migration legislation to the Hague Programme
Comments: There is still a striking lack of commitment to propose or adopt legislation in this area. The adopted legislation already requires the Commission to monitor its application by Member States, so the addition of this issue to the list of measures implementing the Hague programme is not really new.
2.5 Integration of third-country nationals
Status quo: no EU measures on this policy (apart from migration legislation concerning the legal status of third-country nationals)
Hague Programme: called for development of framework to coordinate national policies
Follow-up: JHA Council agreed on integration principles in Nov. 2004
Implementation plan: follows Commission draft in referring to a Communication on integration policy in 2005 and various soft law measures
Comments: this area is dominated by non-binding soft law, but nevertheless the implementation plan is rather more concrete than the Hague programme
2.6 Irregular immigration
Status quo: Schengen Convention contains provisions on carrier sanctions, smuggling of persons; EU legislation adopted on these issues plus trafficking in persons, mutual recognition of expulsion decisions
Hague Programme: called for return and readmission policy to include European return fund, readmission agreements, discussion on proposal for minimum standards for expulsion in early 2005
Follow-up: the proposal for minimum standards for expulsion has not yet been made
Implementation plan: no new points on expulsion and readmission; follows Commission draft by referring also to creation of immigration liaison networks, annual report on policy, proposal on sign and ratify Council of Europe convention on trafficking in persons (opened for signature in May 2005); amends Commission draft by adding point about a report 'which may include instruments for fighting against illegal work' (no date listed)
Comments: the main issues on the future agenda remain readmission agreements and the forthcoming proposal on expulsion policy. The Commission has already been releasing annual reports on policy in this area since 2003, so this point is not new. The new point about possible proposals on unauthorised employment could be significant, but note (unusually) there is no commitment on the timing of this report.
2.7 External dimension
Status quo: a 2004 Regulation provides for funding third countries to assist in implementation of EU immigration and asylum policy
Hague Programme: called for: further integration of migration into EU external policy; regional protection programmes concerning asylum by end 2005, including an EU resettlement programme; and a report on asylum and migration within the context of the EU Neighbourhood Policy (concerning EU relations with nearby ex-Soviet states, Arab states and Israel) by end 2005
Implementation plan: the only new points concern a Communication on migration and development (2005) and conclusions on Member States' cooperation to prevent further loss of life in the Mediterranean; the latter point was added to the Commission draft
Comments: the main issues on the future agenda remain the external asylum proposals, coming soon from the Commission. The report on migration and development was already requested by the Council when it adopted conclusions on this issue in May 2003.
2.8 Border and visa policy, including biometrics and information systems
Status quo: Schengen Convention sets out detailed rules on border control, short-term visa policy, Schengen Information System (SIS); Council had already committed EU to creating a Visa Information System (VIS) and a second-generation SIS; EC legislation had amended Schengen visa rules and (to a very limited degree) Schengen border control rules; accession treaty had required new Member States to apply Schengen rules fully in return for abolition of internal border controls; an EC Regulation had established a Borders Agency to start work in 2005
Hague Programme: called for: abolition of controls with new Member States by 2007 following application of SIS II; review of Borders Agency functions in 2007; legislation in 2005 to establish teams of national experts on border controls; borders fund by 2006; further development of Schengen evaluation mechanism in 2007; a report on interconnection between information systems in 2005; continued integration of biometrics into various documents and 'prepar[ation]' of minimum standards for ID cards; the eventual creation of common visa offices, starting with a proposal to establish common application centres (2005) and a broader review of the Schengen common consular instructions on visas (2006); the Commission to propose VIS legislation as soon as possible; and the facilitation of visas to non-EU states prepared to assist the EU on readmission issues
Follow-up: the Commission made a detailed proposal to establish the VIS in Dec. 2004, and detailed proposals regarding SIS II in May 2005
Implementation plan: adds: a proposal concerning executive powers of national border control officials of Member States acting in other Member States in 2007 (not in Commission draft); a handbook for border guards; partial extension of Schengen rules to the UK and Ireland; more detailed plans on the use of biometrics; a later date for the Commission communication on interoperability of information systems (2006); technical visa proposals, including a review of the standard Schengen visa list (2005); the adoption of a proposal on local border traffic (2005); the negotiation of extended stays for nationals of some non-EU countries; and a specific date for the proposal on common visa offices (2007).
Comments: the implementation plan does not mention the outstanding proposal for an EU border code, although it does set a date for the adoption of the pending proposal on local border traffic. The more detailed plans concerning biometrics indicate the continued desire to adopt further measures in this area, concerning many different types of identity documents. The idea of extended stays for nationals of non-EU countries is an issue discussed in 2001-2002, but blocked for technical reasons. The partial extension of Schengen to the UK and Ireland was already approved in principle in 2000 and 2002. The more concrete commitments regarding common visa offices and external operations by national border control officials indicate a move toward a more uniform policy in this area.
"SECURITY" [LAW ENFORCEMENT]
3.1 Information exchange
Status quo: Information exchange between law enforcement authorities is already provided for in the Schengen Convention, including both the SIS and bilateral information exchange; Europol is also largely concerned with information exchange and analysis.
Hague Programme: called for 'principle of availability' of information held by any EU law enforcement authority to be available to all the others, including a proposal by end 2005; also called for a proposal on a common EU approach to passenger data
Follow-up: the April 2004 JHA Council agreed on certain aspects of the principle of availability; the Feb. 2004 JHA Council agreed conclusions on the access to VIS data by law enforcement authorities
Implementation plan: added: adoption of measures on data retention and the exchange of information between police in 2005; proposals on data protection (2005) and access by law enforcement to the VIS (2006); more detail on the 'principle of availability', applying it to six types of data, with dates (2005-2006); proposal for EU architecture on forensic police databases (2008); policy for EU approach on IT and exchange of information (2005); more detailed points concerning passenger data exchange. The plan differs from the Commission draft by referring to the adoption of a measure on data retention in 2005, not a proposal for such a measure, and by setting an agenda for six different types of data to be subject to the principle of availability, not just DNA and fingerprints.
Comments: the principle of availability is already been spelled out in detail in Council conclusions and now in the implementation plan. EU policy on passenger data exchange is also being further developed through the implementation plan, although this issue was already listed in the Commission's 2005 work programme. So was the proposal on third-pillar data protection. The deadline to adopt the existing data retention and exchange of information proposals is taken from the 2004 anti-terrorism action plan. The point about law enforcement access to the VIS confirms the Feb. 2004 Council conclusions. Finally, the plans for an EU architecture on forensic databases and an EU policy on IT and exchange of information indicate further that there is an ambitious and potentially far-reaching agenda in this area.
Status quo: Framework Decision of 2002 defining terrorism and numerous specific policing measures on this issue; broad anti-terrorism action plan from 2001, revived in 2004.
Hague Programme: called for proposals on security of explosives and precursors, protection of victims, strategy against radicalisation, and a network of experts
Implementation plan: includes some specific new points, including on freezing of assets and a proposal on the use of charities for terrorism; some clarification of Commission draft.
Comments: the main focus of new measures appears to be on terrorism financing.
3.3 Organised crime
Status quo: Joint Action of 1998 defines organised crime; EC has ratified UN Convention on organised crime; various Action plans have been adopted on the subject
Hague Programme: vague reference to strategic concept against organised crime
Follow-up: in Jan. 2005 the Commission proposed a Framework Decision on organised crime, which would replace the Joint Action; in June 2005 it proposed a strategy paper on the topic
Implementation plan: lengthy and detailed agenda, including: action plan on crime statistics; crime-proofing of legislation; communication on cyber-crime; examination of needs for code of conduct on police ethics; proposal concerning reporting of bribery; various initiatives regarding financial crime; adoption of the proposed Framework Decision on organised crime; legislative proposals concerning counterfeiting; possible legislative proposals on trafficking of persons, trafficking in human organs, criminal asset confiscation, tax fraud, identity theft, public tender fraud, arms trafficking, racketeering and extortion; evaluation of national policies and monitoring of adopted measures. As compared to the Commission draft, the Council added a reference to adoption of the organised crime Framework Decision and limited the references to police standards, tax fraud, identity theft measures (the Commission wanted a database of identity documents) and criminal assets (the Commission wanted a measure concerning seizure of assets of unconvicted 'criminals')
Comments: the implementation plan comprises an extensive agenda not at all indicated in the Hague programme. There is a particularly ambitious agenda regarding substantive criminal law linked to organised crime
3.4 Police and customs cooperation
Status quo: Rules in Schengen Convention and Customs Information and Naples II Convention, along with Europol and specific measures on police and customs cooperation
Hague Programme: called for Europol to issue yearly threat assessments, designation of Europol as centre for fighting euro counterfeiting, Commission proposals on cross-border police cooperation, adoption of legislation on Europol by start 2008, agreement on security committee to be established by Constitutional Treaty as soon as possible after its entry into force
Follow-up: proposed Council decision to designate Europol as centre for fighting euro counterfeiting has been agreed in principle; discussions underway on role of security committee
Implementation plan: includes a number of additional points, including implementation of the customs work programme, a communication on trafficking in illegal goods, a Directive on increased transport safety, work on police standards, the adoption of a decision changing the status of the European police college followed by possible further measures, a date to adopt measures on the security committee (1 Nov. 2006), and a number of specific measures concerning cross-border operational cooperation. The final version added the provisions on the police college and limited the provisions on police standards, as compared to the Commission draft.
Comments: the implementation plan adds a considerable number of measures to the Hague Programme.
3.5 Crisis Management
Status quo: European security strategy adopted 2003
Hague Programme: called for crisis management system within institutions by July 2006
Implementation plan: includes some further details on coordination measures to be adopted
Comments: the main focus here is adding details to the Hague programme, particularly as regards critical infrastructures
3.6 Crime prevention
Status quo: Decision establishing crime prevention network
Hague Programme: called for strengthening of network
Implementation plan: reiterates basic thrust of Hague programme
Comments: one area with no development of Hague programme by implementation plan
"JUSTICE" [CRIMINAL & CIVIL]
4.1 Confidence building
Status quo: no EU involvement besides EU judicial network
Hague Programme: called for: evaluation of EU justice policies; support for judicial networks, judicial exchange programmes and a judicial training programme
Implementation plan: sets dates for measures listed in Hague programme (2005-2007)
Comments: makes Hague programme slightly more concrete
4.2 Judicial cooperation in criminal matters
Status quo: mutual recognition programme adopted 2000, partly implemented by adopted/proposed Framework Decisions such as that on the European arrest warrant; also several measures adopted or proposed harmonising national criminal procedural law (such as proposal on basic rights for criminal suspects)
Hague Programme: called for: completion of the mutual recognition programme, particularly on conflict of jurisdiction, evidence and mutual recognition of sentences; adoption of the proposal on suspects' rights by end 2005; adoption of proposal on evidence warrant by end 2005; proposals on criminal record exchange by 2004/2005; adoption of a law on Eurojust following entry into force of the Constitutional treaty
Follow-up: White paper on criminal records, Jan. 2005; Council conclusions, April 2005; proposals made from Nov. 2004 to date on enforcement of custodial sentences, mutual recognition of prior convictions, disqualification of convicted sexual offenders from work with children
Implementation plan: comprises extensive list of proposed measures on mutual recognition, approximation of procedural law (criminal jurisdiction, presumption of innocence, in absentia trials, evidence and witnesses, sentencing harmonisation, analysis of detention procedures and reviews), a White paper on the European public prosecutor planned by the Constitutional Treaty; more specific references to international action, including possible treaties on extradition and mutual assistance. Compared to the Commission draft, the plan brings forward the date of the next evidence warrant proposal, adds references to the admissibility of evidence and detention standards, qualifies the intention to propose measures on harmonisation of sentencing, and drops a reference to the use of intelligence as evidence.
Comments: extensive development of the Hague programme, including a long list of mutual recognition measures (although some have already been proposed and most or all were set out in the 2000 programme), an extensive list of issues to be subject to procedural harmonisation and the inclusion of a paper on the European public prosecutor (a reference to the prosecutor was deleted during discussion of the Hague programme). Notice that the commitments to adopt the proposals on suspects' rights and the evidence warrant are not reiterated in the implementation plan.
4.3 Civil law
Status quo: mutual recognition programme adopted 2000; several measures on jurisdiction/conflict of law and related issues adopted since 2000 (regulations on service of documents, jurisdiction over divorce and child responsibility, jurisdiction/conflict of laws concerning insolvency, general jurisdiction rules on civil and commercial law, taking of evidence, European enforcement order; directive on legal aid in cross-border cases; 1980 Convention on conflict of law in contract (reviewed in 2002 Green paper); 2003 proposal for Regulation on conflict of law in non-contractual matters; 2004 proposal for European payment order
Hague Programme: called for: completion of mutual recognition programme by 2011; work carried forward on conflict of law, payment orders, mediation, and small claims; development of minimum standards for procedural law, such as service of documents, commencement of proceedings, enforcement and costs; Commission to submit proposals on maintenance in 2005, Green Papers on conflicts of laws in succession and divorce in 2005, Green Paper on conflict of law and matrimonial property in 2005; common framework for contract law to be developed
Follow-up: proposal on mediation, 2004, and proposal on small claims 2005; Green papers on choice of law in divorce and on successions, spring 2005
IImplementation plan:ets dates for proposals on conflict of law in contract and amendment of rules on service of documents (2005) and for adoption of three measures in 2006 (conflict of law in non-contractual cases, payment orders, mediation); refers to Green papers on enforcement of judgments, minimum procedural standards; more specific references to cooperation between administrations, development of contract law (2007 and 2009), international negotiations; additional of section on implementation reports on existing measures
Comments: largely a clarification of the Hague programme by adding dates for the adoption or proposal of a number of measures; the 2005 proposals were already listed in the Commission's 2005 work programme
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g. Back issues of this version of the Statewatch European Monitor:
Decemebr 2004 (vol 4 no 7/8)
July 2004 (vol 4 no 6)
May 2004 (vol 4 no 5)
April 2004 (vol 4 no 4)
March 2004 (vol 4 no 3)
February 2004 (vol 4 no 2)
January 2004 (vol 4 no 1)
December 2003 (vol 3 no 6)
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