Revolutionising EU justice policies?
The collective imagination associates the EU with tough decisions on the economy and finance. Not everyone knows that it is also capable of impacting on the important area of justice.
EU citizens view the perceived or real threat of crime as one of their main preoccupations. On top of that, they are not always complimentary when it comes to assessing the way national justice systems protect them from it. A perfect recipe for finding an easy way out en masse into one of the many ‘success-story’ populist parties rising in Europe? More could and should be done to turn citizens’ eyes to an opposite (but quite obvious) reality: the EU can do a lot to find a solution for these worries. More coordination among the Member States and more EU instruments are the answer, not sterile nationalistic mantras.
In this context, the good news is that a consultation has recently been launched by the European Commission, in order to stimulate wider reflections on the next few years of the Union’s justice policies. The outcome will impact on the future multiannual programme for the area of freedom, security and justice (i.e. the successor to the so-called Stockholm Programme) to be presented by the Commission in April 2014. The five sectors concerned are worth being briefly explored.
The new possibilities for developing EU criminal law offered by the entry into force of the Treaty of Lisbon should be used wisely but also without any reservations. In facing an increasingly sophisticated (and cross-border) criminality, a closer and closer cooperation between the Member States can only prove extremely beneficial. Ambitious policies and legislation on the EU’s side could provide the necessary basis.
Furthermore, among the concrete possible elements indicated for the moment by the Commission, it is worth mentioning the hint at the development of solutions that protect both victims and defendants (in full respect of the EU Charter); as well as the possible creation of victim funds and promotion of mediation mechanisms. Common approaches on the liability of natural and legal persons are also envisaged.
Rule of law and fundamental rights
Reflection documents 4 and 5 are quite heavily based on the ‘programmatic’ speech of 4 September 2013 by Commissioner Reding (already commented on in the article published in the November 2013 issue of Europeinfos).
Concerning fundamental rights, a reference to be highlighted is the one on the importance of maintaining the momentum for the EU’s accession to the European Convention on Human Rights: this will be a positive development that will allow citizens to address the Strasbourg Court for non-compliance of EU acts with the Convention.
The Commission also highlights the need to ensure that the EU Charter is respected in inter-institutional negotiations, when (often ‘difficult’) final compromises have to be ‘put together’. This is a delicate point, but it has to be addressed, so as to prevent the good work carried out individually in this regard by the three main EU institutions from being marred. This question also has an impact on the Church: it is sufficient to refer to the example of ensuring respect for the right to freedom of religion, which comes into play in a number of areas for which the EU has legislative competence. The Commission also intends to look into the role of stakeholders and national specialised institutions (e.g. human rights institutions, equality bodies and data protection authorities).
On the rule of law, the (some say precipitous) acceleration of the EU enlargement process has brought about some ‘growing pains’ that had to be expected, but they could be overcome with well-crafted instruments.
As already pointed out in the November 2013 Europeinfos article the prospective role of the EU Charter and of its Article 51 is a central point in the reflections. With the European Convention system already in place and working reasonably well (not to mention the forthcoming accession of the EU to the Convention) the question is how the direct applicability of the Charter in the Member States would be reconciled with the ‘Strasbourg system’. Perhaps, at this stage, the fine-tuning of the substantive provisions of the Charter itself might be a more realistic objective.
In this context, family law comes more than once under the lens of the Commission. The relevant reflection document, although without any particularly developed explanation, promotes the ‘easier’ adoption of EU legislation in the said area by ordinary legislative procedure, rather than - as is the norm for cross-border family law - by unanimity; and a ‘more frequent recourse’ to enhanced cooperation in this field, following the example of the still fresh Regulation on the law applicable to divorce and legal separation. Still, such solutions are designed for being activated in rather exceptional cases and therefore to be ‘handled with care’.
With regard to enhanced cooperation (which basically involves and binds only those Member States which are willing to join) a two-speed Europe in a delicate area like the one at issue does not seem to be the most advisable path to be followed.
The Commission also asks the key questions “In which area of family law is further progress needed at EU level? How should it be achieved?”. Consulting stakeholders on family law is in any case particularly important, as the approaches in this matter are not consensual in the EU and for this reason solutions have to be identified that take into account this aspect, in full compliance with the principle of subsidiarity. The Church follows this area with special concern, as it covers matters of particular importance (one just has to think of the possible impact on the institution of marriage).
The document also hints at a further recourse to EU ‘optional regimes’, on the basis of the experience of sales law. This would provide for EU rules concerning a certain area, in respect of whose application EU citizens could then ‘opt’ for as an alternative to their national law. This sort of instrument could facilitate a healthy, mutual reinforcement and influence between EU and national laws, although it might prove more suited for some areas and far less for others.
The suggestion of spelling out EU minimum standards for the participation of children in court proceedings on parental responsibility deserves particular appreciation.
Administrative law and national administrations
In the area at issue, the Commission refers, inter alia, to the role of independent data protection authorities and to the use of sanctions in the same context. This aspect is of interest, considering that such matters are currently being debated in relation to the proposed General Data Protection Regulation. The emphasis on the links between the high quality of public administration and economic competitiveness and well-being of citizens also strikes the right note.
Reflection and fresh ideas are welcome and necessary
The consultation on the future of EU justice policies will run until the end of 2013. The EU can (and should!) lead in this field. The challenge will be to get, by means of a thorough reflective exercise, to a situation of proposing forward-looking measures that at the same time do not provoke too ‘defensive’ a reaction on the part of the Member States, as this would cripple the chances of achieving the laudable goal set out. Further steps will also have to be tied-in with an in-depth analysis of the impact and efficacy achieved by EU law until now in the five areas covered by the exercise (e.g., in particular, civil law). That’s another reason why a robust and creative participation in the consultation launched by the Commission on the part of individual EU citizens, as well as of interested and competent stakeholders, is essential and should be fully encouraged.