The Area of Freedom, Security and Justice (Policy Area: Justice and Home Affairs)
All of the Union’s competences in the fields of visa, asylum, immigration, judicial cooperation in civil and criminal matters and police cooperation have been regrouped under the heading "area of freedom, security and justice", restructured and in some cases rephrased. The European Council will also ensure consistency in future in this policy area by adopting strategic guidelines.
For the first time all acts in the fields of justice and home affairs are subject to the control of the European Court of Justice. The only exceptions concern certain police or other law-enforcement services where the Member States can invoke the maintenance of law and order and the safeguarding of internal security. This is an important advance with respect to legal protection within the EU.
As a result, the Commission’s monopoly on initiatives and the ordinary legislative procedure (qualified majority in the Council and co-decision by the European Parliament) are applied consistently to the areas of visa, asylum, immigration and judicial cooperation in civil matters. Unanimity in the Council is provided only for legislative acts connected with family law. This does not affect the right of the Member States to determine how many third-country nationals may enter their territory in order to seek work.
The ordinary legislative procedure is also extended to the fields of judicial cooperation in criminal matters and police cooperation, albeit with special provisions:
- Apart from the Commission, a quarter of the Member States have a right of initiative.
- In the field of criminal law, European laws/framework laws with respect to minimum rules for explicitly defined offences are adopted under the ordinary legislative procedure. An extension to additional offences requires a unanimous decision of the Council after obtaining the consent of the European Parliament
- In addition, an "emergency brake" has been established for Member States who consider that draft legislation to be adopted by a qualified majority in the field of criminal law is detrimental to the fundamental principles of its legal system. In this case the draft law may be referred to the European Council. The legislative procedure is then suspended for four months. If the Council does not take an unanimous decision on this draft by the end of that period, or if no European framework law based on a new draft is adopted within 12 months, the authorisation to proceed with enhanced cooperation (closer form of cooperation of a group of EU Member States) in this field is automatically deemed to have been granted at the request of at least one third of the Member States. This means that the provisions in question are valid only for those states that have agreed to them.
Moreover, European laws establish the prerequisites for an expansion of the area of activity of EUROJUST (EU body for cooperation of national law enforcement services). In the case of serious crime affecting one or more Member States, EUROJUST can initiate criminal investigations, but can only propose the initiation of prosecutions.
Furthermore, the Constitutional Treaty contains an authorisation clause providing for the establishment of a European Public Prosecutor's Office in the future, if all Member States in the Council (unanimity) and the European Parliament are in agreement. The powers of this Public Prosecutor’s Office would still be restricted to combating crimes affecting the EU’s financial interests, however. An extension of the powers to include serious crime having a cross-border dimension would require a further unanimous decision by the Council.
The Danish opt-out (right of non-participation) is extended to the entire area of freedom, security and justice (previously it was only applied to the fields of visa, asylum, migration and judicial cooperation in civil matters). At the same time, the possibility to opt in (right to participate in specific areas) is included.
The United Kingdom and Ireland keep their existing opt-out/opt-in arrangements with respect to border controls, asylum, immigration and judicial cooperation in civil matters. In addition, these regulations are extended to the fields of information exchange in police cooperation and administrative cooperation in the areas of justice and home affairs.