Resolution on the draft action plan of the Council and Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (13844/98 - C4-0692/98 98/0923(CNS))
30. 7. 1999 EN Official Journal of the European Communities C 219/61 Tuesday 13 April 1999 − having regard to Rule 58 of its Rules of Procedure, − having regard to the report of the Committee on Economic and Monetary Affairs and Industrial Policy (A4-0170/99), 1. Approves the Commission proposal, subject to Parliament’s amendments; Calls on the Commission to alter its proposal accordingly, pursuant to Article 189a(2) of the EC 2. Treaty; Calls on the Council to incorporate Parliament’s amendments in the common position that it adopts 3. in accordance with Article 189b(2) of the EC Treaty; Points out that the Commission is required to submit to Parliament any modification it may intend to 4. make to its proposal as amended by Parliament; 5. Instructs its President to forward this opinion to the Council and Commission. 20. An area of freedom, security and justice − Combating child pornography on the Internet * (a) A4-0133/99 Resolution on the draft action plan of the Council and Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (13844/98 − C4-0692/98 − 98/0923(CNS)) The European Parliament, − having regard to the draft action plan of the Council and Commission (13844/98 − C4-0692/98 − 98/0923(CNS)) submitted to the Vienna European Council of 11/12 December 1998, − having regard to the Commission communication ‘Towards an area of freedom, security and justice’ (COM(98) 0459 − C4-0551/98), − having regard to the Declaration of the European Union of 10 December 1998 on fundamental rights, − having regard to the report of the Committee on Civil Liberties and Internal Affairs and the opinions of the Committee on Institutional Affairs and the Committee on Legal Affairs and Citizens’ Rights (A4-0133/99), A. mindful of the considerable political, economic and social developments in Europe in the last ten years, and of the increased attractiveness of the European Union to various countries in the continent and neighbouring areas as a model for cohabitation between nations with different traditions and as an area without economic borders, B. aware of both the advantages and disadvantages which can accrue from an association between countries with cultures and social, political and legal systems which, while they share a common background and principles, display marked differences but which must nonetheless meet the increasing demand of civil society for greater fairness, justice and comparable conditions of security and judicial protection, C. aware, in the light of such large-scale processes affecting the whole continent, of the limits to strictly national responses, and the problems encountered by the Member States of the Union in coping with their human, social and economic impact while in the process maintaining reference points which have been found to be essential to citizens and to European public opinion in general, C 219/62 EN Official Journal of the European Communities 30. 7. 1999 Tuesday 13 April 1999 D. aware that organised crime is taking advantage of the absence of or failure to apply European legislation in fields such as immigration, asylum and civil and criminal judicial cooperation and of the compartmentalisation of the national judicial systems, which outrages public opinion and is causing national authorities to lose credibility in the eyes of the European public and giving rise to costs which are not only financial but human and political, E. aware of the limitations inherent in the intergovernmental approach tried under the third pillar of the Union Treaty, which are responsible for the fragmentary character of many measures, agreements and acts of whatever nature which have been adopted or are being negotiated, a deficiency which applies to both their nature and their implementation; anticipating that these measures will be enhanced as a result of the entry into force of the Amsterdam Treaty, which will result in a fresh impetus enabling citizens, together, to reap the benefits of their democratic tradition, F. believing that mutual confidence must be strengthened between the European and national institutions and between them and the European public, G. whereas the legitimate demand for security by those residing within the Union cannot be dissociated from the objective of justice, which is one of the hallmarks of the European Union; whereas, therefore, in order to be effective, police action must be accompanied by the development of judicial cooperation and whereas such cooperation, in turn, is possible only if national crime prevention and crime-fighting policies are coordinated as often as possible at European level, H. noting that the Fifteen finally decided, by means of the Treaty of Amsterdam, to tackle the root of the problems by making constitutional changes; whereas, by means of these provisions, the Union is on the one hand responding to the demands of certain constitutional courts as to its capacity to ensure respect for fundamental rights according to the principle of the rule of law and on the other confirming its mission to act alongside the Member States in affirming not only economic but also political and civil principles; noting that this applies in particular to the following provisions: − Article B of the Treaty on European Union (future Article 2 of the Treaty on European Union) which makes one of the objectives of the Treaty ‘. to maintain and develop the Union as an area of freedom, security and justice. ’ and which is amplified in Article 73i (future Article 61) of the EC Treaty for the first pillar and Article K. 1 (future Article 29) of the Treaty on European Union for the third pillar, − Article F (future Article 6) of the Treaty on European Union, which provides that ‘the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States’, and Article 6a (future Article 13) of the EC Treaty, which enables the Community, inter alia, to take action ‘to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation’, − Article F. 1. (future Article 7) of the Treaty on European Union which provides that respect for fundamental rights is not only a prior condition for membership of the Union but also an absolute requirement for the exercise of the Member States’ rights, − Article L (future Article 46) of the Treaty on European Union, which defines the jurisdiction of the Court of Justice with regard to fundamental rights and police and judicial cooperation in criminal matters, − Title IIIa (future Title IV) of the EC Treaty, which governs the free movement of persons, and Title V (future Title VI) of the Treaty on European Union, which governs police and judicial cooperation in criminal matters, − Article 117 (future Article 136) of the EC Treaty, which refers to the fundamental social rights set out in the Turin European Social Charter (1961) and the 1989 Community Charter of the fundamental social rights of workers and which thus provides a legal basis for European Union action against exclusion, I. whereas the implementation of the future Title IV of the Treaty, on the establishment of an area of freedom, security and justice, requires that the Schengen acquis be incorporated beforehand, as provided for in a Protocol annexed to the Treaty, 30. 7. 1999 EN Official Journal of the European Communities C 219/63 Tuesday 13 April 1999 J. believing that after the establishment of the internal market, the single currency and the basis for a social Europe, one of the prime objectives of the Union must now be the establishment of an area of freedom, security and justice; this must be based on the principle that the free movement of persons and cooperation in fighting crime, by their nature, endanger the fundamental rights of the individual as regards both the policies envisaged and the action taken, K. believing that the establishment of this area of freedom, security and justice is urgently demanded by European public opinion (by every resident of the European Union), that its consolidation is intimately linked to the development of real − and not merely theoretical − European citizenship, and that it constitutes the only possible outcome of the internal market within which persons, goods, capital and services freely move, L. noting the conclusions of the Vienna European Council and the decision to hold an extraordinary part-session in autumn 1999 set aside for freedom, security and justice, M. having regard to the positive outcome of and the remarks formulated during the Interparliamentary Conference organised by Parliament’s Committee on Civil Liberties and Internal Affairs on 24 and 25 March 1999, I. A more positive definition of fundamental rights and European citizenship, and action against any form of discrimination 1. Approves fully the decision by the European Council to hold an extraordinary session in Tampere on 14 October 1999 to debate the establishment of the European area of freedom, security and justice; considers it to be of fundamental importance that the Heads of State and of Government, the newly elected European Parliament and the national parliaments draw up a common strategy on: − European citizenship and the fundamental rights of persons living in the Union, − full attainment of free movement of persons pursuant to Article 7a (future Article 14) of the EC Treaty, − immigration and asylum, − mutual recognition of civil and criminal sentences, − administrative, judicial, customs and police cooperation and upgrading the role of Community agencies such as Europol; declares its readiness, as of now, to participate in the definition of this strategy in collaboration with the high-level group responsible for preparing the Tampere conclusions, promoting, together with national parliaments, appropriate participation by civil society; 2. States that respect for fundamental rights must not merely be a criterion for assessing the legitimacy of Community action but should also be the hallmark of the European Union; considers, in view of the plethora of sources governing the scope of these rights, that the decision by the Presidency of the Council to draw up a Charter of fundamental rights should be analysed with the greatest interest and in particular that the added value which it would represent in comparison with the existing situation should be ascertained; 3. Believes that this initiative should be supplementary to and amplify the European Convention on Human Rights and Fundamental Freedoms (ECHR) and the other international instruments adopted or being negotiated to which the Member States are or intend to be signatory, and that it should be linked with other legislative acts relating to each of the rights in question and become the point of reference for the work of the Court of Justice, which, in the absence of such legislation, has often had to assume the role of legislator in the past; Considers that the future ‘Charter’ to be drawn up in cooperation with the European Parliament (1), 4. national parliaments and the Court of Justice should take as its basis the ECHR and the case law of the European Court of Human Rights and establish as high as possible a level of protection of rights as derived from the constitutional traditions common to the Member States; (1) The following should, in particular, be taken into account: Declaration on fundamental rights and freedoms of 12. 4. 1989 (OJ C 120, 16. 5. 1989, p. 51) and resolutions of 14. 6. 1991 on Union citizenship (OJ C 183, 15. 7. 1991, p. 473) of 21. 11. 1991 on Community citizenship (OJ C 326, 16. 12. 1991, p. 205) and on the Constitution of the European Union of 10. 2. 1994 (OJ C 61, 28. 2. 1994, p. 155). C 219/64 EN Official Journal of the European Communities 30. 7. 1999 Tuesday 13 April 1999 5. Points out that the principle of the rule of law entails judicial review for matters relating to fundamental freedoms and individual rights and considers the use in the Treaty of safeguard clauses designed to restrict review by the Court of Justice to be unacceptable; 6. − − Considers that the Commission should, as a matter of priority, present the proposals on: the setting-up of an authority to monitor the treatment of personal data in the work of the institutions (Article 213b − future Article 286 − of the EC Treaty); the legal means to be used to ensure that the activities of the institutions under the third pillar guarantee the same level of protection in the various Member States; − access to the documents of the institutions (Article 191a − future Article 255 − of the EC Treaty); Considers urgent the presentation by the Commission of the overall plan and of practical measures 7. necessary to combat all discrimination on grounds of sex, race or ethnic origin, religion or conviction, disability, age or sexual orientation and to combat exclusion (Articles 6a and 117 − future Articles 13 and 136 − of the EC Treaty); Recalls the need for greater consistency between the external and internal actions of the Union, 8. which should be attained by drawing up common positions on the occasion of negotiations in international fora or in relations with third countries; II. Tackling the questions of the free movement of persons, immigration and visas 9. Reaffirms that, by virtue of Article 7a of the EC Treaty, free movement of persons is a Community matter, that it ought to have been fully implemented on 1 January 1993 and that it applies to every person legally resident in the Union; 10. Urges the Commission, in the light of the work programme contained in the Treaty (Articles 62 and 63) and the discussions which have already taken place in the Council, and of the texts adopted by Parliament, to submit to the Tampere summit a new strategy and to perform a thorough analysis of the acquis in this field and, if necessary, make proposals for revision and rationalisation of the 70 or so items of Community legislation currently in force in this field; considers, moreover, that it is necessary to take into account the important link with the enlargement process, the pre-accession strategy and the condition imposed on the applicant countries that they should apply the whole of the acquis in the field of justice and home affairs; 11. Reaffirms the urgent need for a genuinely European approach, reappraising: − the free movement of persons, − visa policy (harmonising the list of third countries, improving the uniform format, and the issuing procedures), − − immigration policy, laying down clear conditions for entry and residence (especially in respect of family reunion), the definition of a statute for non-Community nationals legally residing in the Union and positive action to support their integration, − effective action against illegal immigration, targeting criminal networks organising trafficking in human beings, − establishment of a legal framework to enable the Union to cope effectively with a mass influx of displaced persons by creating a harmonised temporary protection regime, including the establishment of a system of humanitarian and financial solidarity between the Member States, − approximation of the conditions for receiving applicants for asylum and of legislation on procedures for conferring refugee status and forms of supplementary protection; Considers that, in order to help formulate such an approach, the forthcoming Intergovernmental 12. Conference should speed up the process of making these areas subject to codecision; 13. Points out that the implementation of freedom of movement for persons within the Union requires that the Schengen acquis be incorporated beforehand, partly in the first pillar and partly in the third pillar; considers that the acquis must therefore be subject to a thoroughgoing appraisal; Parliament can in no way be bound by the decision on the classification of the acquis to be taken by the Council before the entry into force of the Treaty of Amsterdam under an exceptional procedure (unanimity in Council, no Commission initiative and no consultation of the European Parliament); 30. 7. 1999 EN Official Journal of the European Communities C 219/65 Tuesday 13 April 1999 14. Calls on the Council to adopt without delay measures with a view to ensuring the absence of any controls on persons when crossing internal borders in accordance with Article 73j (future Article 62) of the EC Treaty; III. Towards the European area of justice 15. Takes the view that the area of freedom, security and justice should be given practical form before the forthcoming enlargement of the Union and therefore calls on the Council and Commission to adopt the necessary measures without delay; 16. Believes that in general the objective of the Union should be to simplify the relationship the citizen and the business sector have with the judicial system and to make the judicial system more effective within an integrated European area, particularly by encouraging the emergence of a common judicial culture; believes that the process of creating a European legal and judicial area must be accompanied by full parliamentary and judicial control (1); Points out that everyone is entitled to be heard by an independent and impartial judge and to a fair 17. trial governed by the principle of presumption of innocence; stresses the importance of respect for the principles of equal access to justice, protection of the rights of the defence, and equal terms in both civil and criminal proceedings; Points out that the social reintegration of those who have paid their debt to society is a fundamental 18. principle of European criminal law; stresses, furthermore, that the rights of victims of crime and terrorism must be protected and that an adequate system of compensation for such victims must be guaranteed; Considers that the granting of judicial assistance free of charge in cases of difficulty must be 19. guaranteed in all judicial proceedings; Improving the everyday life of the citizens of Europe by strengthening judicial cooperation in civil matters 20. Considers it a matter of urgency, as called for in the Avignon Declaration, to tackle the problems affecting the life of the individual citizen by adopting by Community act the Convention of Brussels II on matrimonial matters and the revision of the Brussels and Lugano Conventions on the recognition of judgments in commercial matters and by facilitating the settlement of cross-border disputes (by making it possible immediately to identify the law applicable), and access to justice; 21. Considers, moreover, that arrangements should be made to ensure that the recognition and enforcement of decisions between Member States is virtually automatic and that, in this context, there is an urgent and vital need to promote the compatibility of the rules applicable in the Member States concerning civil procedure, the conflict of laws and of jurisdiction (Article 73m − future Article 65 − of the EC Treaty) and to step up administrative cooperation between civil-law services by establishing specialist networks (Eurojust) at European level, by exchanging officials or by appointing liaison officers; 22. Considers that the principle laid down in Article K. 4 (future Article 32) of the Treaty on European Union with regard to mutual judicial assistance whereby the Council is to determine ‘the conditions and limitations under which’ judges and investigating and prosecuting officials may operate in the territory of another Member State in liaison and in agreement with the authorities of that State could be applied more in the civil field, where the degree of integration should reflect the fact that this legislation is now of a Community nature; 23. Calls on the Commission to take full advantage of the fresh possibilities offered by Article 73m (future Article 65) of the EC Treaty in order to draw up its own body of rules in the area of civil law and to promote the compatibility of civil procedures; Defining the Union’s role on crime and punishment 24. Attaches fundamental importance to genuine crime prevention by establishing effective cooper- ation between national police services and Europol; believes that when the Treaty of Amsterdam has come (1) See resolution of 13 March 1998 on judicial cooperation in criminal matters in the European Union, paragraph 8 (OJ C104, 6. 4. 1998, p. 267). C 219/66 EN Official Journal of the European Communities 30. 7. 1999 Tuesday 13 April 1999 into force, the Europol Convention must be updated to distinguish more clearly between its operations on behalf of a single Member State and those which are of ‘European interest’ in that they involve several Member States or are conducted on behalf of a Union institution; in the performance of the latter Europol should act as a European agency empowered to carry out operational duties under the supervision of investigating and prosecuting officials (linked through the Eurojust European mutual assistance network) and under the supervision of the European Parliament and the Court of Justice (1); Draws attention, moreover, to the mass of different legal provisions (for example, in the sphere of 25. protection of personal data) governing the work of Europol and the attendant risk that fundamental rights may be put in jeopardy; believes, therefore, that appropriate framework decisions must be adopted in order to guarantee the equivalence of the provisions applicable under the first pillar, the third pillar or the Europol Convention; 26. Reaffirms its support for the principle laid down in Article K. 4 (future Article 32) of the Treaty on European Union on mutual judicial assistance according to which the Council ‘shall lay down the conditions and limitations under which’ judges and investigating and prosecuting officials may operate in the territory of another Member State in liaison and in agreement with the authorities of that State; in the same context, considers it reasonable to further expand European judicial networks, promote exchanges of investigating and prosecuting officials and, in the case of the defence of the financial interests of the Community (the legal basis being Article 209a − future Article 280 − of the EC Treaty), ultimately to institute a ‘European public prosecutor’ who would bring legal proceedings (Corpus Juris); 27. Once again expresses its wish for greater compatibility of criminal proceedings in the Member States, the abolition of the dual criminality requirement for extradition, and for the introduction of direct detention for minor offences; shares the wish expressed by some Member States for mutual recognition of judgements and measures adopted by the courts of the Member States; Considers it to be vital for the Union to draw up a strategy to support and coordinate the actions of 28. the Member States as regards: (a) crimes against humanity or crimes linked to terrorist activity where the persons concerned are sought by several Member States, and recognition of the right of asylum or compliance with requests for extradition, not only through application of legislation which forms part of the third pillar acquis (the Convention of 10 March 1995 relating to a simplified procedure for extradition between the Member States of the European Union, the Convention of 27 September 1996 relating to extradition between the Member States of the European Union, the European Extradition Convention of 13 December 1957), but also by supporting international institutions operating in these fields, by setting up new bodies and by recourse to the appropriate legal instruments; (b) relations with the International Criminal Court, the extraordinary tribunals (Yugoslavia, Rwanda, Lockerbie. ) and the European Court of Human Rights; (c) crimes with repercussions beyond the territory of one Member State and for which measures establishing minimum rules relating to the constituent elements of criminal offences and the penalties applicable should be contemplated as a matter of urgency pursuant to future Article 31 of the Treaty on European Union; this might apply to offences − which affect the integrity/health of individuals (e. g. terrorism, trafficking in persons, violation of bioethical principles, child pornography, racism and xenophobia, and drugs trafficking); − which affect the European economy (e. g. forging of the euro, violation of the Union’s financial interests, international money laundering, corruption and environmental offences); − which are committed using means which necessarily transcend national boundaries (e. g. the Internet); − which involve European citizens from more than one Member State (e. g. organised crime); − which involve organised crime; (1) See resolution of the European Parliament on the progress made in 1998 in the implementation of cooperation in the fields of justice and home affairs pursuant to Title VI of the Treaty on European Union, Minutes of 14. 1. 1999 (Part II, Item 13(a)). 30. 7. 1999 EN Official Journal of the European Communities C 219/67 Tuesday 13 April 1999 IV. Changing working methods and relations between the institutions and with society as from the transitional stage Considers that the realisation of an area of freedom, security and justice is a task which should be 29. carried out in close cooperation between Member States and the European institutions, under a joint programme; appropriate arrangements to ensure participation by the institutional bodies concerned at European and national level and by representatives of civil society in planning and implementing the measures laid down in the action plan should be provided for, bearing in mind the following principles: − this strategy, the main elements of which should be presented at Tampere, should be based on a White Paper from the Commission (which would at the same time be a proposal for a programme for the European Parliament’s term of office) and on specialised strategic documents to be drawn up by the Presidency of the Council and/or by the Commission for each of the fields relating to the realisation of the area of freedom, security and justice; the action plan derived from it would encompass the existing multiannual programmes (such as the programme for combating organised crime or drugs) in a context which takes account simultaneously of the inseparable requirements of freedom, security and justice and would highlight the policy which the Union intends to pursue in the five years ahead with regard to fundamental rights and measures to prevent all forms of discrimination (Article 6a − future Article 13 − of the EC Treaty); − the options set forth in it should be widely debated, including by the European Parliament, national parliaments and civil society; 30. Considers that in the same way it is necessary to: − ensure that the European public are optimally informed and establish legal assistance services attached to all the institutions of the Union (particularly at local and regional level); − make it compulsory for judges, lawyers and public servants to receive training concerning fundamental rights, the European legal system and European comparative law; 31. − − Considers that as of now, during the transitional stage, as regards the Union acquis, it is desirable: in the case of the fields transferred to the first pillar, to review the form and content of proposals not yet adopted and instruments not yet in force (particularly agreements, joint actions or any other act entailing commitments for the Member States), verifying their legitimacy; in the case of acts adopted or in the course of being adopted under the third pillar, to check their legitimacy in relation to the new constitutional framework, involving the Court of Justice if appropriate; − in the case of the agreements whose ratification process has not yet begun or has concerned only a minority of Member States, to transform them into ‘framework decisions’; 32. Considers that as regards the European institutions: − when forming the new Commission, matters relating to fundamental rights and the implementation of the area of freedom, security and justice should be entrusted to a single Commissioner, who should work closely with the President of the Commission; − − − the Justice Council should establish a special link with the General Affairs Council, and the preparatory bodies should be more closely integrated with the bodies operating in Community fields; the terms of reference of the Monitoring Centre for Racism and Xenophobia should be extended to all issues dealt with in the future ‘European Charter’ and to the drafting of the annual report on respect for fundamental rights in the Union referred to in the Declaration of 10 December 1998; the Commission should reorganise its services in order to prepare legislative work in these new fields adequately, provide assistance to Member States and constantly monitor the implementation of the programme; Considers that substantial progress must be made in the field of the area of freedom, security and 33. justice before the future enlargement of the Union; urges the Council and the Commission to adopt the necessary measures as soon as possible; Instructs its President to forward this resolution to the Commission, the Council and the 34. governments and parliaments of the Member States