Third pillar sits on shaky foundations

Date: 24/10/1996

THE last people to impose a harmonised legal system throughout Europe wore togas and spoke Latin.

Since then, despite numerous attempts at unification, the EU has spawned a host of disparate statutes, codes and legal precedents.

Let us face it, say cynics, as long as the French continue to eat Brie and the Greeks eat feta, the EU will never agree on a common approach to justice. It is too closely linked to culture, history, and geography for any idea of a 'common judicial area' to hold water.

Yet look closely, and you might find quite a few French who enjoy a Greek salad, and Greeks rather partial to a baguette full of soft cheese.

And for those who believe that enhanced cooperation in the field of justice and home affairs is essential to win back public support for the Union, by demonstrating the tangible benefits of closer integration in those areas which matter most to ordinary citizens, these problems can - and must - be overcome.

Until recently, EU member states only had the Council of Europe to turn to if they wanted to take an international approach to combating crime. At a global level, there was the United Nations and its crime commission, although it remains better known for budgetary impasse than major successes.

But in 1991, those charged with negotiating the Maastricht Treaty decided that an EU without more sophisticated cooperation risked sinking into a crime-ridden nightmare.

Thus was born the third pillar, which began life tentatively but has grown since to spawn around 170 days of meetings during Ireland's EU presidency alone.

Three years after the Maastricht Treaty was finally ratified by all the Union's member states, however, grand hopes of creating a European justice system have faded.

The Reflection Group which prepared the ground for the current Intergovernmental Conference on EU reform “concluded unanimously” at the end of 1995 that “the magnitude of challenges” faced by the third pillar was “not matched by the results achieved so far in response to them”.

And despite some recent successes, opinions have not changed since.

Apologists claim that the Reflection Group's judgement was harsh and premature, given the lack of negotiating experience amongst EU justice officials.

“It has only really been two years. Give them some more time and things will improve,” insisted one diplomat.

But others say that the pillar's intergovernmental nature, exacerbated by a lack of political will in certain member states, is dragging the edifice down.

The Reflection Group was not convinced that either was the key reason for the system's inadequacies. While acknowledging the difficulties, it argued that the primary cause of the problem lay in the way the relevant treaty articles were drafted.

“The problem is rather that some provisions of this title are inadequate and clearly deficient in operation,” asserted its report.

This conclusion would appear to offer a clear and refreshingly technical challenge to the IGC negotiators.

On one level at least, the debate has resolved itself into a few easily identifiable issues.

Perhaps the most controversial, and yet surprisingly the one which has attracted the greatest consensus amongst a majority of member states, is the question of Community competence.

Under the Maastricht Treaty, the European Commission has the right to propose action on asylum policy, external borders, immigration, civil law and certain aspects of the fight against drugs and fraud.

But technical, political and legal wrangles have, for the most part, made it very difficult for member states to make headway in these areas.

This has prompted 12 out of 15 member states to declare their broad support for moving asylum, visa, immigration and external borders policies into the mainstream of EU decision-making.

Once there, they say, there could be a gradual shift towards introducing an element of qualified majority voting into the decision-making process, in place of the unanimity now required.

The UK, however, is strongly opposed to any encroachment by the Union on what it sees as a matter for sovereign states. In particular, it fears the use of regulations which would bypass national parliaments and guarantee automatic jurisdiction over them to the European Court of Justice.

Neither could Denmark agree to such a move without another EU referendum. Finland too has temporary difficulties because of its long frontier with Russia and would need to re-negotiate current arrangements before accepting Community competence.

Even among the 12 member states who support the idea, there are divisions on specific issues: Spain remains uncertain about harmonising asylum policy and France is withholding judgement until the role of national parliaments in policy formulation has been re-examined.

Even so, the degree of consensus achieved on this issue in the negotiations on EU reform has been heralded as one of the great advances of the IGC so far.

The debates on other aspects of the third pillar have not been so successful. There is wide agreement that the decision-making structure is very unwieldy and guaranteed to reduce even the fastest-moving initiatives to post office queue pace.

While officials dealing with most areas of EU policy make do with working groups, the Union's Committee of permanent representatives (Coreper) and the Council of Ministers, the third pillar has two extra levels of official input.

Three steering groups coordinate judicial, police and customs cooperation, and the K4 committee, named after the article which set it up, brings together their results before passing them to Coreper.

This multi-layered arrangement has led to profound confusion over who is meant to do what. As a result, negotiations can often drag on for months, passing between the groups in an excruciating game of 'hockey-by-fax'.

All the IGC negotiators agree that something has to be done. But they are bitterly divided over what that something should be.

The most likely candidates for the axe are some or all of the steering groups, which many see as unnecessary given the existence of the K4 committee.

Since K4 often joins battle with Coreper, replaying domestic divisions between foreign and justice ministries, it too is a likely candidate for dissolution.

But, say diplomats, until a decision is made on exactly what issues should be addressed by the third pillar, there will be little progress on how they should be tackled.

The UK recently proposed that it should encompass a wide range of practical areas of cooperation, but specify precisely where EU action added value and where member states should act autonomously.

Others believe that intergovernmental cooperation on justice and home affairs issues is already dead in the water, and want to move it lock, stock and barrel into the Communitarised first pillar of the EU treaty.

This has resulted in an ideological deadlock, with neither side ready to make the first move to break it.

The picture is not, however, entirely bleak. For France - no stranger to half-cooperating on home affairs, especially given its less-than-perfect record within the Schengen free-movement zone - is on the verge of proposing a way around the predicament which many believe might just work.

Paris is expected to call for an element of formal flexibility on all such issues which would allow countries to sign up to different degrees of involvement.

Given that many member states are being held up in their push for harmonisation by the reticence of a handful of others, this may prove the only practical, rancour-free solution.