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pdf mise en ligne :30 10 2008 ( NEA say… n° 56 )

COOPERATION JUDICIAIRE PENALE > Principes de légalité et de proportionalité des délits et des peines

The European Parliament has approved on the 25 September a resolution reporting on the annual debate on the progress made in 2007 in the Area of Freedom, Security and Justice (AFSJ). Difficulties and obstacles are yet noticed and several measures have to be taken in the light of the new legislation envisaged by the Treaty of Lisbon.

The European Parliament, after having analyzed the Communication from the Commission of 2 July 2008 entitled “Report on Implementation of the Hague Program for 2007” [1], firmly stated: “…the establishment of a genuine AFSJ is far from having been completed and still faces major difficulties and obstacles…”.

It’s an objective and crude image of the present situation in the AFSJ. The main problem in particular is the lack of  solidarity and cooperation between Member States. Moreover the level of achievement of the target of the Hague Program is  deemed insufficient yet (see also the Commission report on the implementation of the Hague Program in 2007 (EN) (FR).

In the transitional period before the ratification of the Treaty of Lisbon it is suggested to take some measures on the basis of the existing Treaties. First of all it is desirable an establishment of a clearer communication policy in order to let european citizens be better informed about European Union institutions and initiatives in particular in the area of citizens’ fundamental rights. Another action should be taken in order to involve national parliaments in the implementation of the policies in the AFSJ.

Taking into account the two Oral Questions made by Jean-Marie Cavada (see texts B6-0006/2008 and B6-0007/2008) the European Parliament has tried to analyze the situation and to give some advice.

Considering that the possibility of redress for the citizens of the EU in the field of the AFSJ is still more limited than in other areas of EU policies, the European Parliament invited the European Council, the Commission and the Council to act effectively in order to prepare the EU to implement the new legislation which will derive from the Treaty of Lisbon. In particular the European assembly asked the three institutions to arrange a series of proposals in the main priority fields to be adopted before the entry into force of the Treaty. The main priorities have been set forth by the Parliament that divided them into the main areas which constitute the AFSJ.

In the area of fundamental rights and citizenship the Parliament hoped for a forthcoming legislative proposal to restrict direct and indirect discrimination in the field of the movement of citizens in the EU area. Moreover a precise suggestion is made about the European Union Agency for Fundamental Rights. The programme of activities should be revised in order to include also the area of police and judicial cooperation. In the light of the “rapid erosion of data protection standards” the Commission should submit a proposal regarding data protection [2]; in particular protection standards in transatlantic data transfers are considered inadequate.

A serious lack of administrative cooperation [3], dialogue between Member States and mutual knowledge of legal system is still present in the EU.

According to judicial cooperation, strong action should be taken to get ready to implement the new legislation. The status of Europol, of Eurojust and of the European Judicial Network should be revised (although the European Parliament didn’t specify how). A revision is also suggested for the proposal of the rights of individuals in criminal proceedings. A proposal is expected about the rights of the victims of crime and terrorism [4].

As regard to border protection and asylum policies very few are the proposals of the European Parliament and all linked to the Hague Programme. First of all it is suggested the strengthening of the agency Frontex in particular with the enhancement of its competences [5]. Frontex should control that border checks are respectful of human rights. Frontex should also establish cooperation with the United Nations High Commissioner for Refugees in order to simplify the various operations of the two institutions.  According to the free movement of citizens, EU institutions should ensure the functioning of the second generation Schengen Information System (SIS II) and the efficiency of the system envisaged by the Prüm Treaty (we must consider that, although the decisions taken in the summit of  Prüm in 2005 bind only seven Member States out of twenty-seven, they could be taken into account by EU institutions in order to enter the acquis communautaire in the next future). Every kind of effort should be done by all EU institutions in order to promote legal migration. In particular action should be taken in order to implement the new legal migration package (including for example the Blue Card procedure proposed by the Commission). To favour the asylum practice it is recommended the establishment of a European Asylum Support Office as outlined in the Green paper on the future Common European Asylum System, adopted on 6 June 2007 (EN) (FR).

Furthermore the European Parliament appeared particularly worried about the protection of certain categories of  citizens and recommended that the EU legislation explicitly comply with the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their families adopted by the UN General Assembly on 18 December 1990 (EN).

Resolution of European Parliament of 25 September 2008  (EN) (FR)

Fabio Putortì
Università degli Studi di Firenze (Italy)                                           


[1] See COM(2008)0373.

[2] Notably to consolidate the various regimes extant according to the different pillars.

[3] Envisaged by art.66 of EC Treaty.

[4] Otherwise, after the entry into force of the Treaty of Lisbon, the new legal basis of the possible directive could be art 82.2. Both for rights of individuals in criminal proceedings and the victims of crime and terrorism.

[5] The mandate should also include sea rescue operations.