Notes on changes from the draft Stockholm Programme dated 6 October 2009 compared to the later version dated 16 October 2009

Draft Stockholm Programme (16 October 2009, pdf)
Earlier draft Stockholm Programme (6 October 2009, pdf)
See for background: Statewatch Observatory on:
Stockholm Programme

The first 7 paras or so are dropped - so no mention of the Lisbon Treaty here - except for brief mention at the end

Most of page 2 is dropped - the point about no need for an action plan is gone

1.1 - the first priority was human rights protection, now it is a balance between liberty and security

Most of 1.1 is rewritten completely

1.2 provides for an action plan in 2010, drafted by the Commission, plus a schedule to convert third pillar measures into normal EU law - this will increase the role of the ECJ and the legal effect of the measures - plus the EP will then have its normal role - the question may be whether to amend the texts or not as they do this.

Notice no reference to the European public prosecutor - this is consistent with pouring cold water on any attempt for a quick upgrade of Eurojust's roles (4.3.1)

Not really anything calling for upgrade of Europol's role either

New 1.2 tools - mutual trust - mutual recognition is dropped from this part, and the focus is instead on enforcement of existing measures

p 4 - now there is a call for the Commission to draw up an action plan - and now it includes the point about converting existing third pillar instruments

A whole chunk applauding the new institutional arrangements has been dropped

2.1 - significant that the European Council would endorse ECHR accession of the EU 'as a matter of urgency'

2.2 - The programme here is clearly suspicious, rather than supportive, of EU citizens' free movement rights - as compared to the Hague Programme, which looked forward to improving them.

2.3 - the draft programme refers to a need for special need for protection for children and vulnerable adults, along with other vulnerable groups, without suggesting any sort of concrete initiative, even a study. The Council conclusions on crime victims have been agreed but not yet formally adopted - notice the programme does not explicitly ask for a legislative proposal.

part 2.3.1 - the same except there is now a date to report on the racism FD

- child protection - the same except a reference to the Commission communication

- vulnerable groups - the specific references to women have been removed. The reference to use of the European Social Fund in relation to Roma is gone

- crime victims - now a reference to the Council conclusions to be adopted shortly

-suspects' rights - no substantive change

-data protection - the dates to take action by have been dropped, and there is a new point about becoming a world leader in pushing for data protection at international level

- the date to report on the FD on racism and xenophobia is the same date already set out in the FD - so this is not a new commitment

2.4 - the part on criminal suspects' rights does not add anything to the roadmap the Council is about to agree, but that roadmap is fairly ambitious, so the European Council's endorsement is significant

2.5 - notice no call to make immediate proposal on data protection after Lisbon is in force - although in this draft there is a more explicit call for possible general legislative measures - the dates for some more specific measures (deal with the USA, certification scheme) have been dropped

2.6 - The idea of a standard 9 May date for EP elections is now rather qualified - no reference to declining turnout, etc in this draft - the obvious alternative route of increasing turnout by making the elections more relevant, ie strengthening the link between EP elections and election of the Commission President, is ignored - no mention of a public holiday now

2.7 - nothing very concrete about consular protection, even though the Lisbon Treaty would introduce a proper legal base for measures on this issue - the background and detailed commitments have been removed

3 - the opening paras are cut down a bit

3.1.1. - there is an idea of a horizontal measure on common issues in mutual recognition measures (criminal law) - this mentions in particular grounds for refusal, ie dual criminality, territoriality, perhaps de minimise rules (ie the level of seriousness of a crime, in terms of penalties, before an order can be issued), age of criminal responsibility, amnesty and immunity, double jeopardy, possibly fundamental rights (although the mutual recognition measures are all vague about whether a warrant, etc can be refused on human rights grounds) - all important issues (nb there is already a horizontal measure adopted on in absentia trials). There is no explicit call for legislation on this, but there would have to be legislation to amend the existing Framework Decisions, etc. This could be combined with the process of 'converting' third pillar measures into first pillar measures

3.1.2 civil law - no real change

point 3.2 - the selection of asylum as a topic for evaluation is the first time than an immigration-related issue has been selected for evaluation (leaving aside the Schengen evaluation process)

3.2.3 - a specific request for a legal act dealing with evaluation - the idea of an agency has been dropped

3.3.1 - substantive criminal law - they are quite keen to get the proposal on criminal law and IP law restarted (4.4.5) and the existing proposals on human trafficking and sexual offences approved (4.4.1 and 4.4.2) - a report is due (no longer by a particular date) as to whether to have any more substantive criminal law, but then, they also want to review whether to harmonise all crimes on the 'dual criminality' list - in fact this would entail using the powers in the Lisbon Treaty to extend the EU's competence over more areas of crime (ie sabotage, racketeering, extortion)

Notice also they select 5 out of the 10 areas of crime where the EU would have competence to focus upon

The idea of model criminal law provisions is already under discussion, following a recent paper from the Germans (online in the register)

3.5.2 - a fully-fledged policy on the external aspects of criminal law

4.3.2 - the Dutch get the crime prevention agency as part of Europol - there is (unusually) a specific date for action here

point 5.1.3 - there is no sign of the possible creation of an agency to address migration issues. The idea of a platform to discuss labour migration (in the early draft) has been dropped

point 5.1.4 - The commitment to an immigration code (with possible revisions to the existing rules) and revision of the family reunion directive takes up the proposals of the Commission; it is certainly an ambitious agenda as compared to the Hague programme. The idea of a date of 2014 to complete the 'common immigration policy' is a new commitment - not proposed by the Commission and not in earlier Council or European Council conclusions

point 5.1.5 - The text on irregular migration adds nothing much to what was already agreed as part of the Immigration and Asylum Pact, except for a specific commitment to review readmission policy; the part of the early draft (taken from the Commission's suggestion) about common rules on taking charge of persons who cannot be returned has been dropped.

point 5.2 - More elaboration on the reasons for having a Common European Asylum Policy. The main issues raised as regards asylum (keeping in mind that the Immigration and Asylum Pact agreed a number of principles) are the EU accession to the Geneva Convention, the possible strengthening of the support office, and what might be considered the 'third phase' of the Common European Asylum System - the possible adoption of rules on mutual recognition of asylum decisions (no explicit mention now of the transfer of status), and other possible legislation; plus also the reference to an evaluation of asylum decision-making

5.2.2 the usual stress on 'voluntary' solidarity is not repeated - the text could be seen as a cautious move toward reallocating refugees among MS

5.2.3 - much stress on resettlement; the reference to new forms of responsibility, such as humanitarian visas and protected entry, is dropped in the 16 Oct text; but so is the reference to joint external processing

6. less detail on relations with particular partners, in particular EEA/Schengen states; more detail on development of Frontex; more nuanced wording as regards the development of a common visa

6.1 - The draft programme does not explicitly state that the JHA specialists to be inserted into the European External Action service will have an intelligence function - but this seems clear enough, reading between the lines.

6.4.1 There is a clear intention to strengthen Frontex considerably.

6.4.2 Most of the suggestions on entry-exit and visas are derived from prior positions, ie on the Immigration/Asylum pact and the conclusions in response to the Commission's border control papers in 2008.

6.4.3 the idea of a common visa issued by a common consular service is new for the Council - it was first suggested in the June paper by the Commission - although it raises fundamental legal, financial and administrative questions

6.6 There are significant commitments in relation to strategic partners - notably on information exchange with Russia (the deadline for visa waiver has been dropped in this draft), and readmission agreements with Libya (!) and Egypt (negotiations with Morocco and Turkey are not a new point, as they were authorised years ago), but the vague threat to consider unspecified measures if those agreements are not reached has been dropped.

EU-USA area of cooperation

The Future Group report (2008) said:

"By 2014 the European Union should also make up its mind with regard to the political objective of achieving a Euro-Atlantic area of cooperation with the USA in the field of Freedom, Security and Justice".

The Commission proposal did not mention this idea.

The Council Presidency, 6 October 2009 draft, said:

"The European Council offers to the U.S. government a possibility to set a New Transatlantic Agenda by creating a Common Space for Freedom, Security and Justice"

The 16 October 2009 Council Presidency draft now says:

"Cooperation has been intensified with the USA in the past 10 years including on all matters relating to the area of freedom, security and justice. Regular Ministerial Troika and Senior officials' meetings are held under each Presidency. In line with what has been laid down in the "Washington Statement" [adopted at the Ministerial Troika meeting in October 2009], the dialogue should continue and be deepened."

So the Future Group proposed the Council "should make up its mind" on an EU-USA area of cooperation on justice and home affairs, the Commission ignored the idea, the Council Presidency put it back on the agenda then deleted it in its latest draft.

Of course the proposal may come back again when the final version is agreed by the Justice and Home Affairs Council in November. Even if it does not reappear in this form the many existing EU-US meetings will continue and "deepen".

Some other points -

They assume (although less obviously than in the early draft) that Lisbon will be in force

special protection for witnesses and victims - the Commission ruled out a measure on this but the Spanish are already planning a possible proposal during their Presidency

The most specific commitments here are about evidence and disqualification (cf the Futures Group report in this area), where there is a request for legislation and a programme respectively - the reference to mutual admissibility of evidence has been dropped though in the 16 Oct draft

The bits about locking up bankers, etc have basically been retained

Eurotrain has been derailed

the anti-trafficking coordinator follows the same path as the anti-terrorism coordinator

the idea of the EEA/Schengen states signing some sort of overall deal where they will be associated with most or all JHA measures has been dropped

the idea of Council political oversight over the agencies has been dropped, as far as can be seen, in this draft

less reference to COSI in the second draft. Will it be chaired by the rotating presidency still, or by an elected individual

the commitment to abolish visas for Russians by 2015 is dropped.

Turkey is now added to the list of states which need to conclude a readmission agreement - Egypt and Libya (plus Morocco) remain on the list

Draft Stockholm Programme
(16 October 2009, pdf)
Earlier draft Stockholm Programme (6 October 2009, pdf)
See for background: Statewatch Observatory on:
Stockholm Programme

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