1. Conditions for Cooperation in Internal Affairs and Justice
1. Conditions for Cooperation in Internal Affairs and Justice
Why had cooperation in internal affairs and justice issues arisen at all among the member states? What justified that such an economic collaboration-based community should include internal affairs and justice as well in the cooperation?
The proliferation of international terrorism, organized crime, illegal migration, and phenomena “not respecting” country borders - being destructive to both the economic environment and the democratic institutional system - spurred the member states in the latter half of the 20th century to establish frameworks for international cooperation and to foster contacts and dialogue between the national authorities. Compared to other fields of integration, the development of internal affairs and justice cooperation between the member states of the European Communities advanced only at a slow pace. Until the entry into force of the Maastricht Treaty on the establishment of the European Union in 1993, integration happened outside the institutional and legal frameworks.
Cooperation in internal affairs and justice began among the member states of the European Communities in the mid 1970s. With the creation of the so-called Trevi Group the member states created the first ministerial forum on internal affairs for the purpose of harmonizing anti-terrorism actions and the cooperation of police departments in anti-terrorism within the communities. The ministers discussed their anti-terrorism policies and legislation on intergovernmental forums, and set up working groups.
Amending the Treaty of Rome, the Single Europe Act of 1986 represented a turning point in this area of collaboration as well. Putting the free movement of people into a community perspective as one of the key elements of a uniform market brought the possibility and thus the need for cooperation in internal affairs and justice issues into the forefront even more. Even the experts of the Brussels Committee could participate - as observers - in the activities of the working groups established after the ratification of the convention. The ministers responsible for immigration set up an ad hoc working group, and new ones were established in the area of customs cooperation and anti-drugs operations. And, in the course of justice cooperation, the ministers of justice regularly reviewed and discussed matters arising in criminal and civil law issues.
In contrast with the recommendations of the White Book issued by the European Commission in 1985 regarding the free movement of people, internal affairs and justice cooperation will continue to remain in the intergovernmental realm, and neither the European Parliament nor the national parliaments had any direct supervisory jurisdiction. This collaboration was based on treaties, resolutions, conclusions, and recommendations that have been approved outside the scope of the European Council. The 1990 Dublin Convention on the procedure relating to the judgement of refugee applications and the refugee resolutions adopted in London were among them.
In 1985 a group of the member states opted for closer cooperation, and ratified the Schengen convention, then a treaty on the execution of the Schengen convention in 1990 whose purpose was to eliminate control along the internal borders of the parties and to fortify the outer border zone, i.e., it facilitated the free movement of persons and goods within the borders defined by the Schengen convention. New operative structures were created for this purpose in order to enhance cooperation between the police departments and customs authorities under the Schengen Information System (SIS).
The creation and expansion of the common internal market required the enhancement of cooperation in other areas as well, so, the member states declared several new areas as ones falling into their common scope of interest.
Up to the ratification of the Treaty on European Union signed in Maastricht in 1992, internal affairs and justice cooperation was difficult to follow in terms of form, so the various consultation groups had to be integrated into a standard framework for the benefit of enhancing efficiency and harmonizing the jobs of the various organizations working in this area. In the Treaty on European Union the member states grouped the areas of cooperation into three pillars, and internal affairs and justice cooperation was made the third pillar by the European Union by Section VI of the Treaty.
The internal affairs and justice authorities of the member states were the bodies that effectively collaborated. Such cooperation facilitated dialogue between the police departments, justice, and customs authorities of the member states regarding mutual assistance and cooperation within areas of common interest such as refugee policy; the rules pertinent to the crossing of the external borders of the member states and to checking persons crossing the borders; immigration policy and policy relating to the citizens of third-party countries (including the fight against illegal immigration and employment); anti-drugs policy; the prevention of international fraud; justice cooperation in civil and criminal matters; customs cooperation; the cooperation of the police in fighting and preventing terrorism, illicit drug trafficking and other serious forms of international crime. Section VI of the Maastricht Treaty was partly based on an existing system of intergovernmental cooperation, so it was continually under scrutiny due to its complexity and lack of transparency. The European Commission was granted no real decision-making powers this time either; most of them remained within the competencies of the member states.
The deterioration of public safety, racism, immigration, unemployment, international organized crime, and matters relating to safety and the free movement of people - all of which directly concern the citizens and are thus in the focus of public interest - represent constantly escalating problems in the member states of the European Union.
Closing the Intergovernmental Conference convened in 1996 for the review of the Maastricht Treaty, the Amsterdam Convention brought the most marked changes in the very area of internal affairs and justice cooperation. The European Union’s member states agreed to set up a zone of freedom, safety, and justice, which – transgressing the framework of the 3rd pillar of cooperation under the Maastricht Treaty – represents a qualitative change in the integration process.
The member states undertook commitments to gradually include among the community’s jurisdiction legislative powers - relating among others to the free movement of people, external border control, refugee policy, immigration, and visa policy - which were originally considered as 3rd pillar cooperation and are regarded as key elements of national sovereignty by the member states, within five years reckoned from the effective date of the Amsterdam Convention. Community institutions would gradually play increasing roles in the above areas during the transitional period.
The Amsterdam Convention not only transformed but expanded the area of cooperation in internal affairs and justice. The standards pertinent to external border control and the elimination of control on internal borders that have been adopted in the Schengen Convention and the treaty on the execution thereof were committed to the 1st pillar, i.e., community statues, and the 3rd pillar, i.e., intergovernmental cooperation, by the Council’s decision in May 1999. The United Kingdom and Ireland are not signatories, and Denmark is subject to special consideration in this regard.
Third-pillar cooperation, whose subject is police and justice cooperation in criminal issues, also continues to function. Its purpose is to unite forces against racism and xenophobia, terrorism, the smuggling of people, child abuse, drug trafficking, arms smuggling, fraud, and corruption.
Closer cooperation between the police departments, customs authorities, and other competent bodies in the member states, both directly and through EUROPOL, is envisaged in order to achieve the goals. This is enhanced even further by strengthening cooperation between courts of justice and the approximation of the criminal legislation of the member states. The Amsterdam Convention succeeded in making the objectives and means of 3rd pillar cooperation more transparent.
