VIDEO
Specific objective: the creation of an area of freedom, security, and justice (FSJ)
The most important specific objective of the ToL is the creation of an area of FSJ. This ambitious political project confirms that the safety and well-being of EU citizens are at the centre of EU 41 concerns.
To achieve this objective the ToL incorporates the provisions of Pillar 3 created by the Treaty of Maastricht (including the Schengen system) into the TFEU and thus the “EU” method applies to them. As a result, the ordinary legislative procedure under which the Commission has exclusive right to initiate legislative proposals and legislation is adopted jointly by the EP and the Council voting by QMV, has become the rule in respect of the adoption of measures in the area of FSJ. There are, however, exceptions to this rule:
-In respect of measures concerning police and judicial co-operation the Commission shares the right to initiate legislative proposals with Member States. Under Article 76 TFEU a quarter of Member States may initiate a proposal;
-A unanimous vote in the Council is required in respect of measures concerning:
-Passports, residence permits, and any other such documents (Article 77(3) TFEU);
-Family law matters with cross-border implications (Article 81(3) TFEU);
– The establishment of minimum rules concerning “other” (i.e not expressly mentioned in this article) aspects of criminal procedure (Article 82(2) (d) TFEU);
– The identification of areas (these are areas which are not expressly mentioned in Article 83(1) TFEU) of serious crime for which the establishment of minimum rules is needed;
– The establishment of a European Public Prosecutor’s Office (Article 86(1) TFEU);
– Operational co-operation between national law enforcement authorities (Article 87(3) TFEU) and the limitations under which such authorities may operate in the territory of another MemberState (Article 89 TFEU).
Unanimity is required in the European Council in respect of any extension of the mandate of the European Public Prosecutor’s Office (Article 86(4) TFEU). In the areas where unanimity applies the EP is either consulted or required to give its consent. The ECJ has jurisdiction over all measures relating to the creation of the area of FSJ, i.e over the whole area of FSJ. Pre-ToL jurisdictional restrictions have been removed. Additionally, under Article 263 TFEU, the ECJ has jurisdiction to review the legality of Council decisions adopted under the CFSP imposing sanctions on natural or legal persons. However, in the area of police and judicial co-operation in criminal matters, the pre-ToL legislation remains in force for a period of 5 years following the entry into force of the ToL unless repealed, amended or annulled meanwhile (Article 10 of Protocol 36 on “Transitional Provisions” attached to the Treaties). In parallel, during the 5 year period following the entry into force of the ToL, the Commission will have no power to bring proceedings against a MemberState under Article 258 TFEU in respect of breaches of such legislation. Further, Article 276 TFEU excludes jurisdiction of the ECJ to review the validity or proportionality of operations carried out by the police or other law enforcement agencies of a MemberState, or the exercise of responsibilities incumbent of law and order and the safeguarding of internal security.
This seems obvious given that the ECJ has never had jurisdiction to review internal situations. This restriction, however, does not prevent the ECJ from ruling on the validity of certain acts of national authorities in the light of EU law and on the interpretation of the relevant EU acts.
The extension of judicial control over the whole of the area of FSJ, in particular in respect of police and judicial co-operation in criminal matters (subject to the above mentioned exceptions), is essential to ensure the adequate protection of the human rights of the alleged offenders and the alleged victims. It is to be noted that a new urgent preliminary ruling procedure applies to extremely urgent cases relating to the area of FSJ. One type of which is expressly mentioned in Article 267(4) TFEU which requires that the ECJ acts with the minimum of delay in a situation where a case pending before a referring court or tribunal of a Member State concerns a person in custody or deprived of liberty and the answer to the question raised in the referral will be decisive as to the assessment of that person’s legal situation.
Under the ToL, national parliaments have been assigned an important role in the area of FSJ. Under Article 7(2) of Protocol 2 attached to the ToL they may use the “orange and yellow cards” procedure to ensure that a legislative proposal concerning the area of FSJ respects the principle of subsidiarity (see Chapter 4.4.1.2.2).
Under Article 70 TFEU the national parliaments are to be informed of the results of evaluation of the implementation of measures adopted in the area of FSJ, in particular, of results of evaluation of the implementation of measures aimed at facilitating full application of the principle of mutual recognition in respect of judicial decisions and in respect of the activities of a standing committee to be established under Article 71 for the purpose of ensuring operational co-operation on internal security of the EU (Article 71 TFEU).
National parliaments have also their input in the control (Article 88(2) TFEU) and evaluation of activities of Europol (Article 85(1) TFEU). It is submitted that the application of the “EU method” to the area of FSJ will result in a higher degree of efficiency, legal certainty, accountability, and democratic control being exercised by the EP and national parliaments.
