Monday, 28 April 2008

EU TFEU: Administrative cooperation in justice and home affairs

With the Treaty of Lisbon, administrative cooperation in the EU area of freedom, security and justice (FSJ) widens to police and judicial cooperation in criminal matters.

We follow the relevant Lisbon Treaty provision during the treaty reform process and look at how Ireland informs its citizens ahead of the 12 June referendum as well as at what the governments of Sweden and Finland have commented.


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Article 74 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 1 ‘General provisions’

Article 74 TFEU
(ex Article 66 TEC)

The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.

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In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61g TFEU (ToL), which became Article 74 TFEU after renumbering in the consolidated version. The referral in the original Lisbon Treaty was to Article 61i, which became Article 76 TFEU in the consolidated treaty (OJ 17.12.2007 C 308/58).

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Article 66 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/69):

Article 66 TEC

The Council, acting in accordance with the procedure referred to in Article 67, shall take measures to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by this title, as well as between those departments and the Commission.

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The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-164 (OJ 18.7.2003 C 169/58):

Article III-164 Draft Constitution

The Council of Ministers shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, without prejudice to Article III-165, and after consulting the European Parliament.

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This is how Article III-263 of the Treaty establishing a Constitution for Europe looked as part of the IGC 2004 ‘acquis’ which formed the basis for the IGC 2007 leading to the Treaty of Lisbon (OJ 16.12.2004 C 310/114):

Article III-263 Constitution

The Council shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article III-264, and after consulting the European Parliament.

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What has changed along the way, if anything?

The current Article 66 TEC covers the present Title 4 on visas, asylum, immigration and other policies related to free movement of persons. Since the European Convention’s draft Constitution the intention has been to extend the scope to cover the whole area of freedom, security and justice.

The more developed system (taxonomy) of legislative acts in the draft Constitution and the Constitution was, of course, lost as part of the ‘constitutional concept’, so the Treaty of Lisbon reverted to the nondescript ‘measures’ to be adopted.

The Council adopts the measures by qualified majority voting (QMV), since Article 74 TFEU does not spell out a requirement of unanimity. Currently unanimous decisions apply within the third pillar questions on police and judicial cooperation in criminal matters according to Article 34(2) TEU, but qualified majority voting in first pillar matters.

The referral to Article 76 TFEU means that the measures concerning administrative cooperation in the areas of judicial cooperation in criminal matters (Chapter 4) and police cooperation (Chapter 5) can be adopted either on a proposal from the Commission or on the initiative of a quarter of the member states. Presently each member state has the right of initiative in these intergovernmental areas based on Article 34(2) TEU, so it is possible to speak about a residual right of initiative.

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Administrative cooperation in general is mentioned in the Treaty of Lisbon as one of the new areas, where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states. See the Council’s consolidated version, Article 6(1)(g) TFEU, page 67.

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Irish guides and summaries

When governments or other official bodies provide guides or summaries for the general public concerning the Treaty of Lisbon, the main aim has to be to present essentially correct information about the main changes in a fairly reader-friendly manner.

In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland states that administrative co-operation between Member States is also envisaged.

The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:

http://www.reformtreaty.ie/

The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:

http://www.forumoneurope.ie/

The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:

http://www.forumoneurope.ie/eng/index.asp?docID=1489

The Summary mentions ‘Administrative cooperation within the area of freedom, security and justice after consulting the European Parliament’ as one of the new or TFEU areas changed to QMV. Although the change actually applies only to the current intergovernmental fields, the Summary sums it up as well as can be expected in an abbreviated form.

In my opinion, the White Paper and the Summary impart essentially correct information concerning this point to the Irish voters (and to other interested persons).

Would it be too much to ask campaigners to adhere to the same standards of objectivity with regard to facts? Nobody restricts the freedom to form positive or negative opinions about the consequences of the Lisbon Treaty, but it would certainly raise the standard of the debate and the possibility of informed choice if all sides adhered to basic requirements of truthful representation of facts and expressed opinions based on these facts.

The IIEA’s Consolidated and Annotated Version of the Treaties, by Peadar ó Broin, is available at:

http://www.epin.org/new/home

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Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, dedicates a paragraph on page 304 ‘Administrativt samarbete’ to administrative cooperation. The essential statement is that the provision is extended to police and criminal justice cooperation.

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

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Finland

The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a fairly detailed description of Article 61g TFEU (ToL), renumbered Article 74 TFEU on page 190.

The government remarks on the express intent to limit this cooperation to administrative matters, which leaves operational cooperation outside the scope of the provision.

The bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on page193.

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf




Ralf Grahn


Consolidated EU Treaties:

If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:

http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html