Crime and the Constitution: A Brief Chronology of Choices and Circumventions
| Date | 01 June 2004 |
| DOI | 10.1177/1023263X0401100203 |
| Author | Monica den Boer |
| Published date | 01 June 2004 |
| Subject Matter | Article |
Monica
den Boer*
11 MJ 2 (2004) 143
Crime and the Constitution: a Brief Chronology of Choices
and Circumventions
Summary
The article looks into the consequences of the European Convention and the
(draft) EU Constitutional Treaty for the field of Justice and Home Affairs
Cooperation, in particular police and judicial co-operation in criminal matters.
Despite high ambitions expressed during the Convention deliberations, the draft
is proof of the lack of vision about the long-term objectives of the Area of
Freedom, Security and Justice. Although the intergovernmental ‘Third Pillar’
will be abolished, various exceptions remain in this field related to the right of
initiative, voting mechanisms, and decision-making procedures. These covert
remnants of the Third Pillar may contribute to the diffuse and fragmented
implementation of EU law in the domestic criminal justice systems of the EU
Member States. On the whole however, the Constitutional Treaty is to be
welcomed because of the amelioration of judicial and democratic control on
policing and judicial activities. Notwithstanding these positive changes,
democratically elected representatives and judicial authorities will have to
remain alert to the integration of the legal instruments into an emerging judicial
area, where authorities such as Eurojust and OLAF are insufficiently equipped
with the control and supervision of semi-operational activities performed by
Europol and joint investigation teams.
* Director of Research and Knowledge Development, Police Academy of the Netherlands; Professor
Internationalisation of the Police Function, Department of Public Administration, Free University of
Amsterdam.
Crime and the Constitution: a Brief Chronology of Choices and Circumventions
144 11 MJ 2 (2004)
§ 1. The Draft Constitutional Treaty: A New Step in the European
Integration Process
On 18 July 2003, the European Convention issued a final draft of the EU Constitutional
Treaty. For a variety of political reasons, among which most prominently was the
refusal of Poland and Spain to reconsider the weight of the votes in the European
Council, the Rome Summit in December 2003 failed to reach agreement on this draft
text. The Irish Presidency of the EU have had the task of preparing a new draft, and it
has been speculated that the Dutch Presidency, which occupies the second half of 2004,
will have to secure adoption of the new Constitution. The failure of the
Intergovernmental Conference can be considered as rather unfortunate, given that the
Union is on the verge of facing sizeable challenges, such as the capacity-absorption of
EU-enlargement, stagnating economic growth, and decreasing legitimacy. Moreover, in
the course of 2004, a new European Commission will be established and there will be
elections for the European Parliament.
This article focuses on the developments within a substantive field of European co-
operation, namely police and judicial cooperation in criminal matters, which is part of
the wider Justice and Home Affairs Co-operation (JHA), enshrined in the EU Area of
Freedom, Security and Justice. Originally, the Convention was rather ambitious about
putting JHA on a new footing, which – as was the assumption – would make the
European Union more effective and creditworthy as a political union. Despite its
saliency as a policy, during the Convention its importance and controversial character
were overshadowed by larger political issues, such as the distribution of votes, the
election of a Commission President, and the creation of the ‘double hatted’ Foreign
Minister of the European Council.
In this light, the European Convention embraced several questions of relevance to
police and judicial cooperation in criminal matters. First of all, the Convention had to
propose models for a more precise delimitation of competencies between the European
Union (EU) and the Member States, taking account of the principle of subsidiarity.
Second, the status of the Charter of Fundamental Rights that had been adopted at the
Nice Summit was to be addressed. Furthermore, the EU Treaties were to be simplified,
in order to make them more clear and understandable, but without changing the content
of the Treaties. Fourth, the Convention had to look at the role of the national
parliaments within the European structure.
This article analyzes the situation in the Area of Freedom, Security and Justice (AFSJ)
prior to the deliberations that were held in the context of the European Convention.
Furthermore, it looks at the kind of questions which were addressed at the Convention.
Finally, the article evaluates the rate of progress that has been achieved in the draft
Constitutional Treaty, particularly in the domain of police cooperation and judicial
matters.
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