Considerations on COM(2018)384 - Justice programme - Main contents
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| dossier | COM(2018)384 - Justice programme. |
|---|---|
| document | COM(2018)384  |
| date | April 28, 2021 |
| (2) | It is crucial that those rights and values continue to be actively cultivated, protected, promoted, enforced and shared among the citizens and peoples and that they remain at the heart of the Union project, given that a deterioration in the protection of those rights and values in any Member State can have detrimental effects on the Union as a whole. Provision should therefore be made in the general budget of the Union for a new Justice, Rights and Values Fund, comprising the Citizens, Equality, Rights and Values Programme established by Regulation (EU) 2021/692 of the European Parliament and the Council (3) and the Justice Programme. At a time when European societies are confronted with extremism, radicalism and divisions, and space for independent civil society is shrinking, it is more important than ever to promote, strengthen and defend justice, rights and the Union values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights. This will have profound and direct implications for political, social, cultural and economic life in the Union. As part of the new Justice, Rights and Values Fund, the Justice Programme (the ‘Programme’) in line with the 2014–2020 Justice Programme established by Regulation (EU) No 1382/2013 of the European Parliament and of the Council (4) will continue to support the further development of a Union area of justice based on the rule of law, the independence and impartiality of the judiciary, mutual recognition and mutual trust, access to justice and cross-border cooperation. The Citizens, Equality, Rights and Values Programme will bring together the Rights, Equality and Citizenship Programme for 2014–2020 established by Regulation (EU) No 1381/2013 of the European Parliament and of the Council (5) and the ‘Europe for Citizens’ programme established by Council Regulation (EU) No 390/2014 (6). |
| (3) | The Programme should be established for a period of seven years to align its duration with that of the multiannual financial framework laid down in Council Regulation (EU, Euratom) 2020/2093 (7). |
| (4) | The Justice, Rights and Values Fund and its two underlying funding programmes will focus on persons and entities which contribute to making our common values and rich diversity as well as rights and equality alive and vibrant. The ultimate objective is to nurture and sustain a rights-based, equal, open, pluralist, inclusive and democratic society. That includes a vibrant and empowered civil society as a key stakeholder, encouraging people’s democratic, civic and social participation and cultivating the rich diversity of European society on the basis of our common values, history and memory. Article 11 TEU requires that the Union institutions maintain an open, transparent and regular dialogue with civil society and, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action. |
| (5) | The Treaty on the Functioning of the European Union (TFEU) provides for the creation of an area of freedom, security and justice, with respect for fundamental rights and for the different legal systems and traditions of the Member States. Respect for and promotion of the rule of law, fundamental rights and democracy within the Union are prerequisites for upholding all rights and obligations enshrined in the Treaties, and for building people’s trust in the Union. The way in which the rule of law is implemented in the Member States plays a vital role in ensuring mutual trust among Member States and between their legal systems. To that end, the Union should adopt measures to develop judicial cooperation in civil and criminal matters. Respect for fundamental rights as well as for common principles and values, such as non-discrimination and equal treatment on the basis of any of the grounds listed in Article 21 of the Charter, in addition to solidarity, effective access to justice for all, the rule of law, democracy and a well-functioning independent judicial system, should be ensured and fostered at all levels as a European area of justice is further developed. |
| (6) | Financing should remain one of the important tools for the successful implementation of the ambitious goals set by the Treaties. Among other measures, a flexible and effective Justice Programme is crucial in order to facilitate the planning and implementation of those goals. The Programme should be implemented in a user-friendly way, for example through a user-friendly application and reporting procedure, and it should aim at balanced geographical coverage. Particular attention should be paid to the accessibility of the Programme for all types of beneficiary. Within the financial envelope for the Programme, a certain flexibility in the allocation of the funds among specific objectives should be preserved. The flexibility margin should be allocated, as a priority, to actions which support the promotion of the rule of law. |
| (7) | To ensure the gradual establishment of an area of freedom, security and justice for all, the Union is to adopt measures relating to judicial cooperation in civil and criminal matters based on the principle of mutual recognition of judgments and judicial decisions, something which has been a cornerstone of judicial cooperation within the Union since the Tampere European Council of 15 and 16 October 1999. Mutual recognition requires a high level of mutual trust among Member States. Measures to approximate the laws of the Member States in several areas have already been adopted in order to facilitate mutual recognition and foster mutual trust. A well-functioning area of justice, where obstacles to cross-border judicial proceedings and to access to justice in cross-border situations are eliminated, is also of key importance in ensuring economic growth and further integration. At the same time, a properly functioning European area of justice that comprises efficient, independent and high quality national legal systems, as well as a greater degree of mutual trust, are necessary for a flourishing internal market and for upholding the common values of the Union. |
| (8) | Access to justice should include, in particular, access to courts, to alternative methods of dispute resolution, and to public office-holders who are obliged by law to provide parties with independent and impartial legal advice. |
| (9) | Full respect for the rule of law, and the promotion thereof, are essential for a high level of mutual trust in the area of justice and home affairs, and in particular for effective judicial cooperation in civil and criminal matters, which is based on mutual recognition. The rule of law is one of the common values enshrined in Article 2 TEU, and the principle of effective judicial protection provided for in Article 19(1) TEU and Article 47 of the Charter is a concrete expression of the rule of law. Promoting the rule of law by supporting efforts to improve the independence, transparency, accountability, quality and efficiency of national justice systems enhances mutual trust, which is indispensable for judicial cooperation in civil and criminal matters. Judicial independence and impartiality form part of the essence of the right to a fair trial and are key for the protection of European values. Furthermore, having efficient justice systems with reasonable time limits for proceedings serves legal certainty for all parties concerned. |
| (10) | Pursuant to point (h) of Article 81(2) and point (c) of Article 82(1) TFEU, the Union is to support the training of the judiciary and judicial staff as a means of developing judicial cooperation in civil and criminal matters based on the principle of mutual recognition of judgments and judicial decisions. The provision of training to justice professionals is an important tool in developing a common understanding of how best to implement and uphold the rule of law and fundamental rights. It contributes to the building of the European area of justice by creating a common judicial culture among justice professionals of the Member States. It is essential to ensure the non-discriminatory, correct, coherent and consistent application of law in the Union and mutual trust and understanding between justice professionals in cross-border proceedings. The training activities supported by the Programme should be based on sound assessment of training needs, use state-of-the-art training methodology, include cross-border events involving justice professionals from different Member States, comprise active learning and networking elements and be sustainable. Such activities should include training on legal terminology, civil and criminal law, and fundamental rights, and on mutual recognition as well as procedural safeguards. Such activities should also include training courses for judges, lawyers and prosecutors in relation to the challenges and obstacles experienced by people who frequently face discrimination or are in a vulnerable situation, such as women, children, minorities, LGBTIQ persons, persons with disabilities, and victims of gender-based violence, domestic violence or violence in intimate relationships, and other forms of interpersonal violence. Such training courses should be organised with the direct involvement of organisations representing or supporting such persons and, where possible, the involvement of such persons. Taking into account the fact that women are under-represented in senior positions within the judiciary, female judges, female prosecutors and women in other legal professions should be encouraged to participate in the training activities. |
| (11) | For the purposes of this Regulation, the term ‘judiciary and judicial staff’ should be interpreted widely to include judges, prosecutors, court and prosecutors’ office staff, as well as any other justice professionals associated with the judiciary or otherwise participating in the administration of justice, irrespective of the definition in national law, legal status or internal organisation, such as lawyers, notaries, bailiffs or enforcement officers, insolvency practitioners, mediators, court interpreters and translators, court experts, prison staff and probation officers. |
| (12) | Judicial training can involve different actors, such as Member States’ legal, judicial and administrative authorities, academic institutions, national bodies responsible for judicial training, European-level training organisations or networks, or networks of court coordinators of Union law. Bodies and entities pursuing a general European interest in the field of training of the judiciary and judicial staff, such as the European Judicial Training Network (EJTN), the Academy of European Law (ERA), the European Network of Councils for the Judiciary (ENCJ), the Association of the Councils of State and Supreme Administrative Jurisdictions of the European Union (ACA-Europe), the Network of the Presidents of Supreme Judicial Courts of the European Union (EUSJC) and the European Institute of Public Administration (EIPA), play a continuing role in promoting training programmes with a genuine European dimension for the judiciary and judicial staff, and such bodies or entities could therefore be granted adequate financial support in accordance with the procedures and the criteria set out in the work programmes adopted by the Commission pursuant to this Regulation. |
| (13) | The Programme should support the annual work programme of EJTN, which is an essential actor with regard to judicial training. The EJTN is in an exceptional situation, insofar as it is the only network at Union level bringing together the judicial training bodies of the Member States. It is in a unique position to organise exchanges for both new and experienced judges and prosecutors between all Member States, and to coordinate the work of the national judicial training bodies regarding the organisation of training activities on Union law and the promotion of good training practices. The EJTN is also a provider of training activities of excellent quality delivered in a cost-efficient manner at Union level. Moreover, it also includes the judicial training bodies of candidate countries as observer members. The EJTN annual report should include information on the training provided, disaggregated by, inter alia, staff category. |
| (14) | Measures under the Programme should support enhanced mutual recognition of judgments and judicial decisions in civil and criminal matters, mutual trust between Member States and the necessary approximation of legislation to facilitate cooperation between all the relevant authorities, including by electronic means. The Programme should also support the judicial protection of individual rights in civil and commercial matters. It should also promote greater convergence in civil law, which will help to eliminate obstacles to satisfactory and efficiently functioning judicial and extrajudicial procedures for the benefit of all parties in a civil dispute. Finally, in order to support the effective enforcement and practical application of Union law on judicial cooperation in civil matters, the Programme should support the functioning of the European Judicial Network in civil and commercial matters established by Council Decision 2001/470/EC (8). In criminal matters, the Programme should help foster and implement rules and procedures for ensuring recognition of judgments and decisions throughout the Union. It should facilitate cooperation and contribute to eliminating obstacles to effective cooperation and to mutual trust. The Programme should also contribute to improving access to justice, by promoting and supporting the rights of victims of crime as well as the procedural rights of suspects and accused persons in criminal proceedings. |
| (15) | Pursuant to Article 3 TEU, Article 24 of the Charter and the United Nations Convention on the Rights of the Child, the Programme should support the protection of the rights of the child and should mainstream the promotion of the rights of the child in the implementation of all of its actions. To this end, particular attention should be given to actions aimed at the protection of the rights of the child in the context of civil and criminal justice, including the protection of children accompanying parents in detention, children of imprisoned parents and children who are suspects or accused persons in criminal proceedings. |
| (16) | The 2014–2020 Justice Programme allowed for the provision of training activities on Union law, in particular in relation to the scope and application of the Charter, targeted at the judiciary and judicial staff. In its conclusions of 12 October 2017 on the application of the Charter in 2016, the Council recalled the importance of awareness-raising with regard to the application of the Charter, including among policymakers, legal practitioners and the holders of rights themselves, at national as well as Union level. Therefore, in order to mainstream fundamental rights in a consistent way, it is necessary to extend financial support to awareness–raising activities for public authorities other than judicial authorities and legal practitioners. |
| (17) | Pursuant to Article 67 TFEU, the Union is to constitute an area of freedom, security and justice with respect for fundamental rights. Non-discriminatory access to justice for all is instrumental in this regard. In order to facilitate effective access to justice, and with a view to fostering the mutual trust which is indispensable for the satisfactory functioning of the area of freedom, security and justice, it is necessary to extend financial support to activities at national, regional and local level of authorities other than judicial authorities, of legal practitioners and of civil society organisations, which contribute to these objectives. Support should be given, in particular, to activities which facilitate effective and equal access to justice for persons who frequently face discrimination or are in a vulnerable situation. It is important to support advocacy activities of civil society organisations such as networking, litigation, campaigning, communication and other watchdog activities. Within this context, justice professionals associated with the judiciary and working for civil society organisations also have an important role to play. |
| (18) | In accordance with Articles 8 and 10 TFEU, the Programme in all its activities should support gender mainstreaming and the mainstreaming of non-discrimination. Moreover, the United Nations Convention on the Rights of Persons with Disabilities confirms the right to full legal capacity and access to justice for persons with disabilities. An interim and a final evaluation of the Programme should evaluate gender impacts to assess the extent to which it contributes to gender equality and to assess whether it is having unintended negative impacts on gender equality, in accordance with point 16 of the Interinstitutional Agreement of 16 December 2020 between the European Parliament, the Council of the European Union and the European Commission on budgetary discipline, on cooperation in budgetary matters and on sound financial management, as well as on new own resources, including a roadmap towards the introduction of new own resources (9) (the ‘Interinstitutional Agreement of 16 December 2020’). In this context and while taking into account the different nature and size of the activities of the specific objectives of the Programme, it will be important for individual data collected by project promoters to be broken down by sex whenever possible. It is also important to provide information to applicants on how to take gender equality into account, including information on the use of gender mainstreaming tools such as gender budgeting and gender impact assessments where necessary. Gender balance should be considered when consulting experts and stakeholders. |
| (19) | The Programme in all its activities, where relevant, should also support and protect the rights of victims in both civil and criminal matters. To this end, particular attention should be given to improved implementation of the various Union instruments for the protection of victims, and coordination between them, as well as to actions aimed at the exchange of best practices between courts and legal practitioners dealing with cases of violence. The Programme should also support the improvement of the knowledge and use of collective redress instruments. |
| (20) | Actions covered by the Programme should contribute to the creation of a European area of justice, fostering the independence and efficiency of the legal system, increasing cross-border cooperation and networking, underpinning mutual trust between the judiciaries of Member States and achieving the correct, coherent and consistent application of Union law. Funding activities should also contribute to a common understanding of the Union’s values and of the rule of law, to a better knowledge of Union law and policies, to sharing know-how and best practices in using judicial cooperation instruments by all concerned stakeholders, as well as to the proliferation and promotion of interoperable digital solutions underpinning seamless and efficient cross-border cooperation, and they should provide a sound analytical basis for supporting the development, enforcement and proper understanding and implementation of Union law and policies. Union intervention allows for those actions to be pursued consistently across the Union and brings with it economies of scale. Moreover, the Union is in a better position than Member States to address cross-border situations and to provide a European platform for mutual learning and sharing of best practices. |
| (21) | The Programme should also contribute to enhancing cooperation between Member States, wherever Union law has an external dimension, taking into account external consequences, in order to improve access to justice and facilitate tackling judicial and procedural challenges. |
| (22) | The Commission should ensure overall consistency, complementarity and synergies with the work of Union bodies, offices and agencies, in particular the European Union Agency for Criminal Justice Cooperation (Eurojust), the European Union Agency for Fundamental Rights (FRA), the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA) and the European Public Prosecutor’s Office (EPPO), and should take into account the work of other national and international actors in the areas covered by the Programme. |
| (23) | In order to ensure the efficient allocation of funds from the general budget of the Union, it is necessary to ensure that all actions carried out under the Programme have Union added value, complement Member States’ actions and are consistent with other Union actions. Consistency, complementarity and synergies should be sought with funding programmes supporting policy areas which are closely interlinked, in particular with the Citizens, Equality, Rights and Values Programme, as well as with the Single Market Programme, established by Regulation (EU) 2021/690 of the European Parliament and of the Council (10), programmes in the fields of border management and security, in particular the Asylum, Migration and Integration Fund and the Internal Security Fund, programmes in the field of strategic infrastructure, in particular the Digital Europe Programme, established by Regulation (EU) 2021/694 of the European Parliament and of the Council (11), Erasmus+, established by Regulation (EU) XXXX/XXXX of the European Parliament and of the Council (12), Horizon Europe, established by Regulation (EU) 2021/695 of the European Parliament and of the Council (13), the Instrument for Pre-accession Assistance and the LIFE Programme, established by Regulation (EU) XXXX/XXXX of the European Parliament and of the Council (14). |
| (24) | This Regulation lays down a financial envelope for the entire duration of the Programme, which is to constitute the prime reference amount, within the meaning of point 18 of the Interinstitutional Agreement of 16 December 2020, for the European Parliament and the Council during the annual budgetary procedure. |
| (25) | In accordance with Article 193(2) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (15) (the ‘Financial Regulation’), a grant may be awarded for an action which has already begun, provided that the applicant can demonstrate the need for starting the action prior to signature of the grant agreement. However, the costs incurred prior to the date of submission of the grant application are not eligible, except in duly justified exceptional cases. In order to avoid any disruption in Union support which could be prejudicial to Union’s interests, it should be possible, for a limited period of time at the beginning of the multiannual financial framework 2021-2027, that costs incurred in respect of actions supported under this Regulation which have already begun be considered eligible as of 1 January 2021, even if they were incurred before the grant application was submitted. |
| (26) | The Financial Regulation applies to the Programme. The Financial Regulation lays down rules on the implementation of the Union budget, including the rules on grants, prizes, procurement, indirect management, financial instruments, budgetary guarantees, financial assistance and the reimbursement of external experts. |
| (27) | The types of financing and the methods of implementation under this Regulation should be chosen on the basis of their capacity to achieve the specific objectives of the actions and to deliver results, taking into account in particular the costs of controls, the administrative burden, the capacity of relevant stakeholders and targeted beneficiaries, and the expected risk of non-compliance. This should include consideration of the use of lump sums, flat rates and unit costs, as well as financing not linked to costs as referred to in Article 125(1) of the Financial Regulation. |
| (28) | In accordance with the Financial Regulation, Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council (16) and Council Regulations (EC, Euratom) No 2988/95 (17), (Euratom, EC) No 2185/96 (18) and (EU) 2017/1939 (19), the financial interests of the Union are to be protected by means of proportionate measures, including measures relating to the prevention, detection, correction and investigation of irregularities, including fraud, to the recovery of funds lost, wrongly paid or incorrectly used and, where appropriate, to the imposition of administrative penalties. In particular, in accordance with Regulations (Euratom, EC) No 2185/96 and (EU, Euratom) No 883/2013, the European Anti-Fraud Office (OLAF) has the power to carry out administrative investigations, including on-the-spot checks and inspections, with a view to establishing whether there has been fraud, corruption or any other illegal activity affecting the financial interests of the Union. The EPPO is empowered, in accordance with Regulation (EU) 2017/1939, to investigate and prosecute criminal offences affecting the financial interests of the Union as provided for in Directive (EU) 2017/1371 of the European Parliament and of the Council (20). In accordance with the Financial Regulation, any person or entity receiving Union funds is to fully cooperate in the protection of the financial interests of the Union, grant the necessary rights and access to the Commission, OLAF, the Court of Auditors and, in respect of those Member States participating in enhanced cooperation pursuant to Regulation (EU) 2017/1939, the EPPO, and ensure that any third parties involved in the implementation of Union funds grant equivalent rights. |
| (29) | Third countries which are members of the European Economic Area (EEA) may participate in Union programmes in the framework of the cooperation established under the Agreement on the European Economic Area (21), which provides for the implementation of the programmes on the basis of a decision adopted under that Agreement. Third countries may also participate on the basis of other legal instruments. A specific provision should be introduced in this Regulation requiring third countries to grant the necessary rights and access required for the authorising officer responsible, OLAF and the Court of Auditors to comprehensively exercise their respective competences. |
| (30) | Horizontal financial rules adopted by the European Parliament and the Council on the basis of Article 322 TFEU apply to this Regulation. Those rules are laid down in the Financial Regulation and determine in particular the procedure for establishing and implementing the budget through grants, procurement, prizes and indirect implementation, and provide for checks on the responsibility of financial actors. Rules adopted on the basis of Article 322 TFEU also include a general regime of conditionality for the protection of the Union budget. |
| (31) | Pursuant to Council Decision 2013/755/EU (22), persons and relevant public and/or private bodies and institutions in overseas countries and territories are eligible for funding subject to the rules and objectives of the Programme and possible arrangements applicable to the Member State to which the relevant overseas country or territory is linked. |
| (32) | Reflecting the importance of tackling climate change in line with the Union’s commitments to implement the Paris Agreement adopted under the United Nations Framework Convention on Climate Change and the United Nations Sustainable Development Goals, the Programme is intended to contribute to mainstreaming climate action and to the achievement of an overall target of 30 % of the Union budget expenditures supporting climate objectives and the ambition of 7,5 % of the Union budget reflecting biodiversity expenditures in 2024 and 10 % in 2026 and 2027 while considering the existing overlaps between climate and biodiversity goals. The Programme ought to support activities that respect the climate and environmental standards and priorities of the Union and the ‘do no harm’ principle of the European Green Deal. Relevant actions ought to be identified during the Programme’s preparation and implementation, and be reassessed in the context of the relevant evaluations and review processes. |
| (33) | Pursuant to paragraphs 22 and 23 of the Interinstitutional Agreement of 13 April 2016 on Better Law-Making (23), the Programme should be evaluated on the basis of information collected in accordance with specific monitoring requirements, while avoiding an administrative burden, in particular on Member States, and overregulation. Those requirements, where appropriate, should include measurable indicators as a basis for evaluating the effects of the Programme on the ground. The Commission should report on the performance of the Programme annually to the European Parliament and to the Council, within the existing reporting mechanisms, in particular the EU Justice scoreboard. |
| (34) | In order to ensure the effective assessment of the Programme’s progress towards the achievement of its objectives, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of indicators set out in Articles 13 and 15 and Annex II. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. |
| (35) | In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (24). |
| (36) | Since the objectives of this Regulation, namely to contribute to the further development of a European area of justice based on the rule of law, mutual recognition and mutual trust, in particular by promoting judicial cooperation in civil and criminal matters, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale and effect of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the TEU. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives. |
| (37) | Regulation (EU) No 1382/2013 should therefore be repealed. |
| (38) | In order to ensure continuity in providing support in the relevant policy area and to allow implementation to start from the beginning of the multiannual financial framework 2021-2027, this Regulation should enter into force as a matter of urgency and should apply, with retroactive effect, from 1 January 2021. |
| (39) | In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application. |
| (40) | In accordance with Articles 1 and 2 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application, |