Monday, 21 April 2008

EU TFEU: Area of freedom, security and justice I

At the present stage of development the Treaty establishing the European Community has, within the first or Community pillar, a Title IV on visas, asylum, immigration and other policies related to free movement of persons, but Title VI of the Treaty on European Union retains provisions on police and judicial cooperation in criminal matters within the intergovernmental third pillar. (The second pillar, intergovernmental in nature, is the common foreign and security policy).

If the Treaty of Lisbon enters into force, it abolishes the pillar structure of the European Union, and it replaces it with one EU based on two treaties. The legal personality of the European Community is taken over by the European Union.

Internal security, or the area of freedom, security and justice, would be rearranged, codified and developed within a more unified framework.

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This introductory post is divided into two parts. The first part presents the consolidated contents of the Lisbon Treaty provision presenting the aims of the area of freedom, security and justice. It then shows the amendments agreed by the intergovernmental conference as well as the corresponding provisions of the current treaties, the draft Constitution and the Constitutional Treaty.

The second part intends to analyse the various stages of the treaty reform process and to add some comments on this policy area.

Even in this extended form, this introductory post is only a start. During the course of Title V (Articles 67 to 89 according to the new numbering) there will be room for additional aspects, including general ones, when we advance Article by Article.

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If you want to know 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


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We start by noticing that Article 2, point 62, of the Treaty of Lisbon (ToL) moves Article 60 of the Treaty establishing the European Community to become the amended Article 61h ToL (OJ 17.12.2007 C 306/56).

After renumbering this becomes Article 75 of the consolidated Treaty on the Functioning of the European Union (TFEU), so we are going to encounter the provision later on.

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Today, we enter a new area: Title V ‘Area of freedom, security and justice’. It replaces the current Title IV ‘Visas, asylum, immigration and other policies related to the free movement of persons’.

Article 67 TFEU is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL) and provisionally consolidated by the Council of the European Union (document 6655/08; page 95-96), 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 67 TFEU
(ex Article 61 TEC and ex Article 29 TEU)

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.

2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.

3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.

4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

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In the Treaty of Lisbon Article 2, point 63 and point 64 (of which the beginning is reproduced here), the intergovernmental conference (IGC 2007) agreed on the following amendments, with the original ToL numbering (OJ 17.12.2007 C 306/56):

AREA OF FREEDOM, SECURITY AND JUSTICE;

63) A Title IV, with the heading ‘AREA OF FREEDOM, SECURITY AND JUSTICE’, shall replace the Title IV on visas, asylum, immigration, and other policies related to free movement of persons. Title IV shall contain the following Chapters:

Chapter 1: General provisions

Chapter 2: Policies on border checks, asylum and immigration

Chapter 3: Judicial cooperation in civil matters

Chapter 4: Judicial cooperation in criminal matters

Chapter 5: Police cooperation.


GENERAL PROVISIONS

64) Article 61 shall be replaced by the following Chapter 1 and Articles 61 to 61 I. Article 61 shall also replace the current Article 29 of the Treaty on European Union, Article 61 D shall replace Article 36 thereof, Article 61 E shall replace Article 64(1) of the Treaty establishing the European Community and the current Article 33 of the Treaty on European Union, Article 61G shall replace Article 66 of the Treaty establishing the European Community and Article 61 H shall take over Article 60 thereof, as set out in point 62 above: …

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For the corresponding provisions in force, we go to the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/1.

The text of Article 61 TEC is here (page 65-66):

TITLE IV
VISAS, ASYLUM, IMMIGRATION AND OTHER POLICIES RELATED TO FREE MOVEMENT OF PERSONS

Article 61 TEC

In order to establish progressively an area of freedom, security and justice, the Council shall adopt:

(a) within a period of five years after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions of Article 62(2) and (3) and Article 63(1)(a) and (2)(a), and measures to prevent and combat crime in accordance with the provisions of Article 31(e) of the Treaty on European Union;

(b) other measures in the fields of asylum, immigration and safeguarding the rights of nationals of third countries, in accordance with the provisions of Article 63;

(c) measures in the field of judicial cooperation in civil matters as provided for in Article 65;

(d) appropriate measures to encourage and strengthen administrative cooperation, as provided for in Article 66;

(e) measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Treaty on European Union.

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The current Article 29 TEU reads like this (page 23-24):


TITLE VI
PROVISIONS ON POLICE AND JUDICIAL COOPERATION IN CRIMINAL MATTERS

Article 29 TEU

Without prejudice to the powers of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating racism and xenophobia.

That objective shall be achieved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud, through:

— closer cooperation between police forces, customs authorities and other competent authorities in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,

— closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit (‘Eurojust’), in accordance with the provisions of Articles 31 and 32,

— approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).

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We take a look at the intermediary stages of the treaty reform process, starting with the European Convention.

Introducing Chapter IV ‘Area of freedom, security and justice’, Section 1 ‘General provisions, Article III-158 of the draft Treaty establishing a Constitution for Europe proposed the following (OJ 18.7.2003 C 169/57):

Chapter IV
AREA OF FREEDOM, SECURITY AND JUSTICE

SECTION 1
General provisions

Article III-158 Draft Constitution

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights, taking into account the different legal traditions and systems of the Member States.

2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this chapter, stateless persons shall be treated as third-country nationals.

3. The Union shall endeavour to ensure a high level of security by measures to prevent and combat crime, racism and xenophobia, and measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as by the mutual recognition of judgments in criminal matters and, if necessary, the approximation of criminal laws.

4. The Union shall facilitate access to justice, in particular by the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

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At the end of the IGC 2004 the governments of the member states signed the Treaty establishing a Constitution for Europe, with the following Article III-257 (OJ


CHAPTER IV
AREA OF FREEDOM, SECURITY AND JUSTICE

SECTION 1
GENERAL PROVISIONS

Article III-257 Constitution

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.

2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third‑country nationals. For the purpose of this Chapter, stateless persons shall be treated as third‑country nationals.

3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws.

4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters.

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In part two of this post we take a closer look at the treaty reform stages and add some comments.


Ralf Grahn