Introduction to EU Policies

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Introduction to EU Policies Institutional
Architecture

• X.
• Justice, freedom and security

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Introduction

• Beginning
• The movement of peoples was subordinated to the
  economic freedoms persons and services are
  treated as means of production
• But it has changed, and now even the economic
  freedoms are seen more and more often from the
  human perspective (see Mary Carpenter case)
• Relative provisions of the Treaty
• European Citizenship ?Articles 17 22 of the EC
  Treaty (introduced by Maastricht Treaty)
• Visas, asylum, immigration and other policies
  related to the free movement of persons ?Title IV
  of the EC Treaty (introduced in Amsterdam Treaty)
• EU Treaty, Title VI, Police and judicial
  cooperation
• Charter of the Fundamental Rights of the EU (in
  process )

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I. European Citizenship II. Role of the
ECJ in the protection of fundamental
rightsIII. Charter of the Fundamental Rights
of the EUIV. Visa, migration and other
policies regarding free movement of peoplesV.
Police and judicial cooperation
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I. European citizenshipArticles 17-22 of the EC
Treaty
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• Accessory character - citizenship of one of the
  Member States result automatically in European
  citizenship
• Member states can not negate the internal rules
  of another member states relating to the
  acquisition and/or maintenance of its citizenship
  (problem with the double citizenship, C-369/90
  Micheletti 1992)

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Rights of the EU citizenGeneral rule see
article 17 (2) of the EC Treaty
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Right to free movement and residence within the
territory of another member state(see article
18 of the EC Treaty)

• Market oriented right necessary to take
  advantage of some of internal market freedoms
• Freedom to provide services
• Freedom of establishment
• Free movement of workers

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Who can take advantage of this right?

• Persons economically active (workers, persons
  providing services, businessmen)
• Bu t aslo members of their families
• Clients
• (See Directive 2004/38/EC on the right of the
  citizens and the members of their families to the
  free movement and residence within the territory
  of the EU)

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Evolution of the right to move and reside From
market citizenship towards constitutional
citizenship?

• Martinez Sala v. Freistaat Bayern C-85/96 1998
• Rudy Grzelczyk v. Centre public daide sociale
  C-184/99 2001
• Mary Carpenter C-60/00 2002
• Chen C-200/02 2004

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Right to non-discriminationSee article 12,
article 141 of the EC Treaty

• Within the scope of application of this Treaty,
  and without prejudice to any special provisions
  contained therein, any discrimination on grounds
  of nationality shall be prohibited.
• Each Member State shall ensure that the
  principle of equal pay for male and female
  workers for equal work or work of equal value is
  applied.
• E.g. Sabbatini C-20/70 1972

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Right to vote See Article 19 of the EC Treaty

• Every citizen of the Union residing in a Member
  State
• of which he is not a national have
• right to vote and stand as a candidate at
  municipal elections in the Member State of the
  residence, under the same conditions as nationals
  of that State
• right to vote and to stand as a candidate in
  elections to the European Parliament in the
  Member State in which he resides, under the same
  conditions as nationals of that State

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Right to consular and diplomatic protectionsee
article 20 of the EC Treaty

• Every citizen of the Union shall, in the
  territory of a third country in which the Member
  State of which he is a national is not
  represented, be entitled to protection by the
  diplomatic or consular authorities of any Member
  State, on the same conditions as the nationals of
  that State. Member States shall establish the
  necessary rules among themselves and start the
  international negotiations required to secure
  this protection.

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Right to consular and diplomatic protectionsee
article 20 of the EC Treaty

• Every citizen of the Union shall, in the
  territory of a third country in which the Member
  State of which he is a national is not
  represented, be entitled to protection by the
  diplomatic or consular authorities of any Member
  State, on the same conditions as the nationals of
  that State. Member States shall establish the
  necessary rules among themselves and start the
  international negotiations required to secure
  this protection.

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Right to consular and diplomatic protectionsee
article 20 of the EC Treaty

• Every citizen of the Union shall, in the
  territory of a third country in which the Member
  State of which he is a national is not
  represented, be entitled to protection by the
  diplomatic or consular authorities of any Member
  State, on the same conditions as the nationals of
  that State. Member States shall establish the
  necessary rules among themselves and start the
  international negotiations required to secure
  this protection.

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Right to the petition to the European Parliament
and to lodge a complaint to the European
OmbustmanSee Article 21 of the EC Treaty

• not only EU citizens right but all EU resident
  (in the case of the EU citizens the exercise of
  that right is not dependent on her/his residence)
• Only the problems connected with the EC
  activities (II and III pillar excluded)

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Right to access the documentsSee article 255 of
the EC Treaty

• Any citizen of the Union, and any natural or
  legal person residing or having its registered
  office in a Member State, shall have a right of
  access to European Parliament, Council and
  Commission documents.
• WWF, T-264/04 2007

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II. Role of the ECJ in human rights protection
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Evolution in the ECJ rulings

• Stauder, C-29/69 1969
• Internationale Handelsgesellschaft, C-11/70
  1970
• Nold, C-4/73 1974
• Hauer, C-44/79 1979
• Hoechst C-46/87 1989

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What are the fundamental rights protected by
the ECJ?

• Rights common to the constitutional traditions of
  the Member States
• Rights protected in the international agreements
  of the Member States (primordial importance of
  the ECHR)

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Disadvantages

• There is not any catalogue of fundamental rights
  protected by the ECJ
• The individual does not know, which rights are
  protected and what is the scope of that
  protection
• There can be the divergence between ECJ and the
  ECHR differentiation of protection standards

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Remedies?

• EC/EU sign the ECHR (see opinion of the ECJ
  2/94)
• EC/EU adopts its own document containing the
  closed and exhaustive catalogue of the
  fundamental rights

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III. Charter of Fundamental Rights of the
EUadopted XII 2000
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Preamble Chapters I. DignityII. FreedomIII.
EqualityIV. SolidarityV. Citizens rightsVI.
JusticeVII. General provisions
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Future of the Charter?

• Reform Treaty and declaration on the CFR of the
  EU

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• IV.
• Visas, asylum, immigration and other policies
  related to the free movement of persons

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• Article 14 of the EC Treaty
• Idea of removal of internal borders in the
  Community
• ..the internal market shall comprise the area
  without internal frontiers
• but it has no automatic effect (C-378/97
  Florius Ariel Wijsenbeek)
• certain forms of cooperation in the III pillar
  of the EU created by Maastricht (Justice and
  Home Affairs)
• Dates
• 1993 internal market is completed but frontiers
  remains
• 1985 cooperation within Schengen zone
• 1997 Transfer of acquis Schengen and all issues
  related to the visa, imigration policies from
  the III pillar to the EC treaty

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EC in order to establish the area of freedom,
security and justice adopts

• Measures with a view to ensuring the absence of
  any controls on persons, be the nationals of EU
  or third country nationals, when crossing the
  internal EU borders (acquis Schengen)
• Common measures relating to the control on
  external borders of the EU (standards and
  procedures of border checks, rules on visa)
• Common condition under which a third country
  national, legally residing in one MS may reside
  in another MS
• Measures on refugees and displaced persons (rules
  for temporary y stay)
• Measures on immigration policy (conditions on
  entry and residence, standards and procedures of
  issue of a long term visas, illegal immigration)
• Measures to enable the judicial cooperation in
  civil matters
• Measures on asylum (in accordance with the Geneva
  convention from 1951) that means
• Criteria and mechanisms for determining which MS
  is responsible for considering application for
  asylum, minimum standards on the reception of
  asylum seekers, minimum standards for granting
  and withdrawal of refugee status

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But

• (the common EC rules) can not affect the
  exercise of the responsibilities incumbent upon
  Member States with regard to the maintenance of
  the law and order and the safeguarding of the
  national security.
• In the event of one or more MS being confronted
  with an emergency situation characterized by a
  sudden inflow of nationals of third countries the
  Council may adopt the provisional measures (max.
  6 months) for the benefit of the MS concerned
• UK, Ireland have special opt-in and Denmark a
  opt-out rights regarding provision of the Title
  IV on Visa, Immigration and policy on the free
  movement of peoples

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Schengen Area

• France, Germany, Belgium, Luxembourg and the
  Netherlands in 1985 create a territory without
  internal borders ("Schengen area). Second
  Schengen Agreement was signed in 1990.
• The Schengen area gradually extended Italy
  joined on 1990, Spain and Portugal 1991, Greece
  1992, then Austria 1995 and finally Denmark,
  Finland and Sweden 1996. New MS will enter
  Schengen Area 21st XII 2007.
• Participation by nonEU countries Switzerland and
  Lichtenstein
• Outside Schengen Irleand and UK, Denmark partly.
• the Treaty of Amsterdam incorporated acquis
  Schengen into EU law on 1 May 1999 (that means
  all the decisions taken since 1985 by the
  Schengen group members and the associated working
  structures)

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• Measures adopted by the Member States as part of
  cooperation under Schengen included
• the abolition of checks at common borders,
  replacing them with external border checks and a
  common definition of the conditions for crossing
  external borders and uniform rules and procedures
  for checks there
• separation in air terminals and ports of people
  travelling within the Schengen area from those
  arriving from countries outside the area
• coordination between administrations on
  surveillance of borders (liaison officers and
  harmonisation of instructions and staff training)

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• the introduction of cross-border rights of
  surveillance and hot pursuit for police forces in
  the Schengen States
• the strengthening of judicial cooperation through
  a faster extradition system and faster
  distribution of information about the enforcement
  of criminal judgments
• the creation of the Schengen Information System
  (SIS). SIS is a sophisticated database used by
  the authorities of the Schengen member countries
  to exchange data on certain categories of people
  and goods.

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Visa policy

• 2006 Community Code for Visas (Denmark, the
  United Kingdom and Ireland are not bound)
• Regulation (first one from 1999) determining the
  third countries whose nationals must be in
  possession of visas when crossing the external
  borders of the Member States

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Azylum

• Regulation from 2003 on establishing the criteria
  and mechanisms for determining the Member State
  responsible for examining an asylum application
  lodged in one of the Member States by a
  third-country national (Dublin II)
• Directive from 2003 on laying down minimum
  standards for the reception of asylum seekers
• Directive from 2004 on on minimum standards for
  the qualification sets criteria for qualifying
  either for refugee or subsidiary protection
  status and sets out what rights are attached to
  each status. Directive also introduces a
  harmonised regime for subsidiary protection in
  the EU for those persons who fall outside the
  scope of the Geneva Convention (on the refugrees)
  but who nevertheless still need international
  protection, such as victim of generalized
  violence or civil war.
• Directive from 2005 on minimum standards on
  procedures in Member States for granting and
  withdrawing refugee status
• Since 2000 Eurodac system enables Member States
  to identify asylum applicants and persons who
  have been apprehended while unlawfully crossing
  an external frontier of the Community. By
  comparing fingerprints, Member States can
  determine whether an asylum applicant or a
  foreign national found illegally present within a
  Member State has previously claimed asylum in
  another Member State or whether an asylum
  applicant entered the Union territory unlawfully
• Creation of the European Refugee Fund

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Immigration

• Tampere Council from 1999 decision on the frames
  of the EU immigration policy
• it be based on a comprehensive approach to the
  management of migratory flows so as to find a
  balance between humanitarian and economic
  admission
• it include fair treatment for third-country
  nationals aiming as far as possible to give them
  comparable rights and obligations to those of
  nationals of the Member State in which they live
  
• a key element in management strategies must be
  the development of partnerships with countries of
  origin including policies of co-development
• EC adopted
• Directives on legal immigration (on the right to
  family reunification on a long-term resident
  status for third country nationals who have
  legally resided for five years in the territory
  of a Member State on the conditions of admission
  of third-country nationals for the purposes of
  studies, pupil exchange, unremunerated training
  or voluntary service on admission of researchers
  into the EU
• Policy papers on integration (unity in diversity
  or assimilation?)
• Concluded the readmission agreements
• EU adopted
• Action plan on illegal immigration (III pillar)
  and return action program

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Judicial cooperation in civil matters

• E.g. mutual recognition and enforcement of civil
  judgments
• ? A judgment given in a MS is to be recognised
  automatically, no special proceedings being
  necessary unless recognition is actually
  contested, in another MS.
• Jurisdiction, recognition and enforcement of
  judgments in civil and commercial matters
  ("Brussels I")
• Jurisdiction and the recognition and enforcement
  of judgments in matrimonial matters and in
  matters of parental responsibility (Brussels
  II)

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V. Police and judicial cooperation in criminal
matters
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• Eurojust and Europol
• Fight with trafficking of human beings, organized
  crime ect.
• European arrest warrant replacing the
  extradition system
• The framework decision defines EAW as any
  judicial decision issued by a MS with a view to
  the arrest or surrender by another MS of a
  requested person, for the purposes of
• conducting a criminal prosecution
• executing a custodial sentence
• executing a detention order.
• The warrant applies in the following cases
• where a final sentence of imprisonment or a
  detention order has been imposed for a period of
  at least four months
• for offences punishable by imprisonment
• Some offences may give rise to surrender without
  verification of the double criminality of the
  act terrorism, trafficking in human beings,
  corruption, participation in a criminal
  organisation, counterfeiting currency, murder,
  racism and xenophobia, rape, trafficking in
  stolen vehicles, fraud including that affecting
  the financial interests of the EC.
• For criminal acts other than those mentioned
  above, surrender may be subject to the condition
  that the act for which surrender is requested
  constitutes an offence under the law of executing
  Member State (double criminality rule).
• Advocaten voor de wereld, C-303/05

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Questions (choose one)

• What do you think, is the citizenship possible at
  the supranational level?
• What do you think, is the protection of
  individual rights in the EU sufficient?
• Deadline to submit (by email, please) 8 Jan.
  2007, 12 noon
• Max. 800 words
• Readings
• S. Douglass-Scott, pp. 431-458
• Craig, pp.317-369