The EU Constitution and Justice and Home Affairs: the accountability gap
01 May 2003
The draft EU constitution, agreed in the EU’s constitutional Convention in July 2003, will now be subject to an Inter-governmental Conference starting in October, at which Member States’ governments will consider whether they will “unpick” the text or not. The issue of Justice and Home Affairs (JHA), where the Constitution is particularly ambitious, will likely be a major issue. What strengths and defects does the Constitution have in this area?
First of all, there would be a number of striking changes regarding the decision-making process and judicial control over JHA matters. All measures concerning border controls, immigration and asylum would shift to a qualified majority vote in the Council (made up of delegates from Member States’ governments). Furthermore, in all cases except one (emergency asylum decisions) there would also be co-decision with the European Parliament (EP), giving the EP joint decision-making powers with the Council. As for criminal law and policing, the majority of legislation would be subject to qualified majority voting with co-decision, excluding only creation of the European Public Prosecutor, cross-border actions by police and operational police measures (concerning such matters as the use of joint investigation teams). The Commission would be given the exclusive power to propose immigration and asylum legislation (this will already be the case by 1 May 2004) and the dominant role in proposing criminal and policing legislation, sharing its power to propose only where by a quarter of Member States make a proposal, rather than any one Member State, as at present. Also, criminal and policing legislation would take the form of “normal” EU laws (Regulations and Directives, to be renamed “laws” and “framework laws”) with their normal legal effect, rather than framework decisions, decisions and Conventions as at present.
Judicial control would be expanded by applying the normal rules on the Court of Justice’s jurisdiction (including the possibility for all national courts or tribunals to send questions to the Court of Justice) to all JHA matters in all Member States, with the exception of the validity and proportionality of policing actions, where this is a matter of national law (Article III-283).
Secondly, the extent of the powers of the “Union” (which replaces the current “Community” and “Union”) would also change in all of these areas. In the areas of immigration and asylum (Articles III-166 to 169), visa and border powers would be revised to grant broader powers over visa policy and powers over freedom to travel, and to provide for power to set up an “integrated border management” system (but with no express reference to the idea of establishing a European border guard). Member States would retain the right to determine their geographical boundaries. Immigration and asylum policies would be “common”, rather than concerned (at present) with establishing minimum standards in most areas. The EU’s asylum powers would be revised to include some of the principles established by the Tampere European Council (summit meeting) of 1999, to give the EU power to adopt rules on a “uniform” status of asylum and to set out “common” rules in various areas, to state more expressly that all of the EU’s powers extend to subsidiary protection (a status granted to those who need protection but who do not meet the definition of “refugee” in the 1951 Refugee Convention), and to add a power concerning external cooperation on asylum (at the urging of the UK government in particular).
As for the EU’s immigration powers, again some Tampere principles would be included in the constitution (for example, “fair treatment” of third-country nationals), but not all (the Tampere reference to equal treatment of long-term residents does not appear). The EU would have new express powers to define the rights of third-country nationals in a single Member State, and the powers over irregular migration would be revi