Pioneer groups can drive JHA integration

Date: 22/07/04

THE justice ministers of France, Germany and Spain decided last Monday (19 July) to create a network linking criminal records, an initiative that could be joined by other member states.

Two weeks ago, at an informal meeting in the UK, interior ministers from France, Germany, Italy, Spain and the UK announced plans to harmonize their anti-terror policies.

The 'G5' meeting, as it has been dubbed, has become a regular gathering since May 2003. The number of such restricted meetings of just some member states is prompting the question of whether different layers of integration on justice and home affairs (JHA) will develop within the EU.

Is the Union's justice and home affairs agenda to advance through such pioneer groups of countries, which deepen integration, leaving remaining states the choice to join them later?

In theory, the provisions of the newly adopted EU constitution make it easier for groups of member states to go further down the road of integration in such matters. There are two institutional elements in the constitution that could encourage the growth of such 'enhanced cooperations' in JHA: the so-called emergency brake and the passerelle.

The emergency brake enables a government that opposes a decision on judicial cooperation in criminal matters being taken by qualified majority voting (QMV) to prevent its adoption by referring the matter to the European Council.

If the Council reaches no decision or if, within 12 months from the submission of a new draft, the legislation has not been adopted, member states which so wish can form a group of enhanced cooperation and apply the law among themselves.

They have to number at least one-third of the total member states (a minimum of nine).

One Commission official involved in talks on the EU constitution admits that this facilitates the launch of pioneer groups.

"If no solution is found at 25, the enhanced cooperation would be automatically launched, no demand is necessary to get it started," he said.

"It is a signal that enhanced cooperation in JHA is not just a theoretical possibility but an automatic development, in case one state thinks of blocking a decision," he added.

The second incentive for the launch of enhanced cooperations is the provision that groups of states that engage in such projects would be able to take decisions by qualified majority vote, even if the unanimity rule applies to those policy areas (the passerelle).

"The prospect of going ahead with a small group and deciding things by a majority vote could be tempting for states that have the political will to go forward and know that unanimity at 25 is not realistic, but majority voting at nine or at eleven is," an official in the Commission's secretariat-general said.

But specialists say the crucial question is whether the specificity of the area of justice and home affairs encourages the development of such closer cooperations.

Would member states benefit from launching such projects or do they only draw full benefits from actions agreed by all?

Charles Elsen, the Council of Ministers' outgoing director-general for justice and home affairs, says that the predictions of several such closer cooperations in this area have so far proven to be unfounded.

"A door has been opened for enhanced cooperations with the [1998] Amsterdam Treaty. It was said "this is the area of closer cooperations par excellence". But no such cooperation has been launched since," he says.

Elsen explains that "very often, it does not make sense to launch a project, if not all member states are in. Because the real added value is brought by the participation of all".

There are two main reasons why EU states could decide to go forward with an enhanced cooperation: the reluctance of other countries to embark on a project, or the lack of trust among states, in particular on such sensitive issues as the exchange of intelligence.

The Schengen project, for instance, which led to the elimination of border controls between most member states, was initially launched with five countries and is still only applied by 13 out of the 15 old member states because of the reluctance of two countries, the UK and Ireland, to give up their border control.

In this case, Schengen was a pioneer project, which gradually attracted initially reluctant member states.

The G5 and the new 'G3' group aimed at creating a criminal record network could also be "pioneer groups inside Europe which aim to move more quickly towards operational goals", as one French official said.

In addition, the agreements resulting from their meetings could form the basis of future EU-wide laws, in a Schengen-type scenario.

But Charles Elsen admits that "trust" is the key word for action in justice and home affairs and member states could prefer to launch projects involving a few countries trusting each other instead of acting at 25 - or not acting at all - on sensitive matters.

On the exchange of intelligence, for instance, cooperation is more likely to be based on smaller groups of member states working together bilaterally, and not on action at 25.

"It is better, in this area, to have a real cooperation among some member states - the big ones, for instance, as all member states would never be at the same level on the gathering of intelligence - than nothing at 25.

"Therefore it is more realistic to imagine some form of flexible arrangements among a few states in this area," Elsen said.

On intelligence sharing or police cooperation, member states are likely to prefer to develop projects within groups of countries that face the same problem or display similar capabilities.

But they may prefer informal gatherings and exchanges to launching formal enhanced cooperations, as envisaged by the constitution.

The Constitutional Treaty for Europe makes the launch of enhanced co-operations easier. But will the concept take off?