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The institutional structure in the third pillar (cooperation in justice and
home affairs, CJHA)
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How the CJHA has developed
Functional pressure forces cooperation |
It is certainly true that the first attempts at achieving cooperation between EU member states on an exclusively intergovernmental basis started in the mid 1970s. Non-EU countries were even involved in this cooperation on issues such as the fight against terrorism and capital offences. As the EC moved ever closer together through projects such as the internal market and the free passage of individuals from one member state to another, however, it became increasingly clear that it would be essential to coordinate law systematically in the areas of immigration and asylum, the fight against crime (cross-border crime) and in civil and criminal law to name but a few. This means that once again in this pillar we are faced with more of the kind of functional pressures that we have already come across several times during the course of this Main Subject Group.
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The forms in which cooperation might take |
While it might have been clear that cooperation was absolutely essential, just what shape this cooperation between member states would take was far from certain. Two options seemed most likely: to transfer the necessary authority to the Community or to retain and supplement and modify the intergovernmental cooperation that had already been established. |
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How
CJHA was structured in the Treaty of Maastricht |
At the end of the negotiations a mix had been agreed upon rather than a uniform solution.
Other than in the limited areas of visa policy, hardly any authority was transferred to the EU. It was decided that by far the largest majority of domestic and justice policy would continue to operate at an intergovernmental level and was incorporated into the so-called third pillar. This was done because of the concerns of a number of member states, which were reluctant to hand over authorities to the EU in this central policy area. [Back to top of page]
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CJHA areas |
Before we take a more closer look at the way in which the
CJHA is structured in the Treaty of Maastricht, I would like to use the following illustration to show briefly what the issues are in this area and which individual areas it encompasses. This can be taken straight out of the Treaty (Title VI of the EU Treaty), in which the following nine areas are said to be areas of joint interest.
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The institutional framework of
CJHA in the Treaty of Maastricht |
What institutional framework was set up to allow cooperation in these areas? The following illustration provides you with a graphic overview.
The member states consult in the Council in order to coordinate their approach. Cooperation between the administration offices responsible is also to be established. In the areas on the left-hand side of the illustration above the solid line, the Council can only decide upon a joint position following an initiative from a member state or the Commission. In the areas detailed in the lower half of the illustration joint positions can only be agreed upon following an initiative from a member state. In addition to this the Council can also promote all forms of cooperation that serve the objectives of the Union and decide upon joint measures, but only if these can be realized better together than through measures from individual states. This limitation involving a right to co-initiative by the Commission demonstrates clearly that member states are resistant to the EU extending its powers into core areas of national sovereignty.
One of the most important parts of the institutional structure of the third pillar is the K4 Committee, which is named after the Treaty article which gave it life. This Committee contains high-ranking civil servants from the member states and is similar in its composition and functions to the Political Committee that was set up within the framework of the EPC and
CFSP. The K4 Committee is charged with coordinating tasks, with preparing the work of the Council and either on the request of the Council or on its own accord with preparing opinion. The decision-making method is almost entirely unanimity.
After it has been informed about the work being done by its Chair and the Commission, the European Parliament then makes recommendations to the Council.
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Deficits of the institutional construction |
This institutional construction, created out of the tension between functional pressure and the concerns of member states with regards to a supranational vs. intergovernmental direction, has proven to have very significant deficits indeed. For example the lack of clarity and overlapping of authorities between the EU pillar and the third pillar have made the decision-making processes very difficult and extremely slow.
The almost universally applicable principle of unanimity for the decision-making process also created serious deficits. For one it prevented concrete results from being reached in the form of legal norms. And for another — and this is particularly true for the decision-making area of law relating to non-residents — it prevented a genuine harmonization of national legal requirements. If any decision was possible at all, it was always according to the lowest common denominator. In almost all instances there are a large number of exceptions that member states can use. These member states usually already have their own legal arrangements in this particular area and that are unwilling to change them.
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The institutional framework of
CJHA in the Treaty of Amsterdam |
Accepting that certain rules are inefficient and that improvement is necessary within the EU is one thing, transforming this acceptance into practical solutions set against the opposing positions adopted by member states and their determination to hold on to national sovereignty is quite another. Bearing this in mind, let's take a closer look at the regulations of the Treaty of Amsterdam with regards to the area of justice and internal affairs using the following illustration.
The main point here is that large parts of the EU's third pillar - namely asylum policy, regulations controlling the crossing of external boarders, immigration policy and EU policy with regard to citizens of third countries, as well as legal cooperation in civil and criminal law - were transferred into Community law in the form of the newly introduced title IV [ visas, asylum, immigration and other policies related to free movement of persons], which encompassed articles 61 to 69 in the constitution of the Treaty of Amsterdam.
The remaining parts of the third pillar were tightened up and, it's hard to believe, made partially subject to the jurisdiction of the ECJ and given a new more concise title "Provisions on Police and Judicial Cooperation in Criminal Matters", this is title VI of the Treaty of European Union, which encompasses articles 29 to 42.
In addition to this, a protocol was also introduced aimed at abolishing internal boarders; this protocol is known as the Schengen Agreement. Exceptions were made in a further protocol exempting Ireland, the UK and Denmark.
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How the
CJHA has developed |
Before we start to look for the reasons for this incredible development towards supranationalization, which is completely opposite to the way in which cooperation in the
CFSP/ESDP is structured, I would just like to finish briefly our look at the history of the way in which the
CJHA developed.
The Treaty of Nice came into force in 2003. In several areas concerning freedom of movement it allows EU member states to decide with a majority and with the participation of the European Parliament. Member states, however, must agree on minimum standards in areas such as immigration and asylum in advance. All this, then, points to another clear step towards supranationalization. Indeed, the Treaty would have achieved even more significant progress towards "more Europe" in domestic and justice policy had it not been for the negative results from the referendums in France and the Netherlands. These changes have been put on ice for the time being. |
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An analysis of the institutional development in the CJHA |
Because of the high pressure of a number of problems, the Treaty of Maastricht paved the way for the areas of justice and internal affairs to be integrated into the third pillar; because of the differing positions of the member states and fears about an erosion of national sovereignty, as well as differences in the way in which member states organized their police forces and legal systems etc. the rules that were agreed upon were completely insufficient and totally unable to meet even the most rudimentary requirements with regard to efficiency and democratic control. What we have here, then, is a„ mixed variable situation“, which we have already come across several times : On the one side you have factors that are pushing towards communization; this communization, however, is not possible in the necessary scope because of the determinants at the member state level that are pushing completely in the opposite direction.
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Differences vis-a-vis
CFSP/ESDP |
The decisive difference
to CFSP is that it was possible first in the Treaty of Amsterdam and then just a few years later in the Treaty of Nice to make extensive revisions to the way in which cooperation was structured. Indeed, it would be fair to describe these revisions as a small breakthrough. This is because however slowly, these revisions illustrate a movement towards supranationalization, a movement that we have also seen in other EC pillar areas such as in environmental and monetary policy.
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Reasons for the differences: Pressure caused by problems and strengthening cooperation |
Why? What has changed in the variable situation? As I see it, two elements have played a decisive role: First of all the pressure of all the problems that has increased substantially since the Maastricht referendums and the internal market and since the end of the East-West conflict and all the implications for migration and internal security and, secondly, the fact that Denmark and the UK, the two countries that always prevented agreements from being reached in the past because of their basic stance towards national sovereignty and the way in which they felt the EU should be structured, are now either not involved or only partially involved in certain areas.
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[Author: Prof. Dr. Wolfgang Schumann]
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