Ministers resort to more flexible justice

Justice and home affairs ministers met last week (19-20 April) in Luxembourg to discuss a swathe of proposals which had long been deadlocked.

A proposal to set minimum punishments for incitement to racism and xenophobia broke the stalemate on six years of wrangling over the plan. But the deal waters down the proposal so much that it only allows member states to punish conduct which disturbs public order.

Ministers also discussed a proposal to allow couples of different nationality or who are living in different states to their home country to choose which divorce law should apply to them. Sweden warned it would not accept a proposal which "would lead to Swedish courts ruling on any law other than Swedish law". The Netherlands, Finland and Cyprus also had problems with the proposal.

It was, however, a proposal for a minimum set of rights for criminal suspects which introduced a new procedure for dealing with different attitudes of member states on justice and home affairs.

The proposal is opposed by six states (UK, Ireland, Malta, Cyprus, the Czech Republic and Slovakia) which say that the European Convention on Human Rights provides for suspects’ rights and that this proposal would cause conflict.

Agreement was reached to allow a set of binding rights for suspects who are transferred from one member state to another through the European arrest warrant. The six reluctant states would go no further than this, but the other 21 countries still want to see the proposal extended to cover all suspects.

"There are various possibilities," German Justice Minister Brigitte Zypries said, talking about ways to break the deadlock over suspects’ rights. The minister said that an "opt-in system’ could be envisaged for the 21 states that "want to go further" than applying the suspects’ rights to the European arrest warrant.

"Or we would agree to the framework decision and provide an opt-out for those who don’t want to apply it apart from the European arrest warrant. And then there’s the possibility of enhanced co-operation," she added.

Franco Frattini, the commissioner for justice, freedom and security, was equally adamant that a small group of countries armed with vetoes should not stop the rest of the EU moving ahead.

"We will combine flexibility with full respect for national traditions. That is why this working method or procedure which has been agreed is so important," he said.

Triggering a formal procedure such as the never before used enhanced co-operation, which requires a minimum of eight states to move ahead on a proposal, could be difficult to accept for many governments which fear the creation of a two-speed Europe. But allowing a few countries to go ahead seems inevitable on justice and home affairs, even if it only includes an informal system of opt-ins or opt-outs, as described by Zypries, and not a formal enhanced co-operation.

For some observers, this would be a disaster for the EU. "We need to build up mutual trust and this kind of approach is fragmented, too limited and too piecemeal," said Florian Geyer, a research fellow at the Centre for European Policy Studies.

The justice area is already fragmented, with the Schengen zone, of which only 13 states are members, the Prüm treaty on data exchange which, was agreed by seven states, and the G6 meetings of interior ministers from the EU’s biggest countries.

But other analysts see this as inevitable given the number of proposals blocked and the watering down of many others.

"This is a recognition of what already exists, where there is very intense co-operation in areas of the EU, where there are long, internal land borders and then areas which are not as central or where their judicial systems differ," said Hugo Brady, research fellow at the Centre for European Reform.

Zypries said that a way of allowing the 21 states to move forward on suspects’ rights must be worked out before ministers meet again in June, "otherwise there is a problem".

But Brady said that in the longer term "all eyes should be on the constitutional treaty negotiations" to see how difficulties can be worked out. The EU constitution would do away with many of the national vetoes on matters of justice and home affairs.

Given the current emphasis on combating terrorism, organised crime and illegal immigration, member states will have to come up with a way of addressing their divergences.

"We are at a crossroads on justice and home affairs," said Brady. "Ministers are in a difficult position but they can’t afford not to do anything."

Justice and home affairs ministers met last week (19-20 April) in Luxembourg to discuss a swathe of proposals which had long been deadlocked.