Tuesday, 22 April 2008

EU TFEU: Area of freedom, security and justice II

We continue to look at the introductory provision on the area of freedom, security and justice, Article 67 TFEU. The second part of this blawg article analyses the various stages of the treaty reform process and suggests some further reading.

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When we compare the text of Article III-158 (presented in part I) and the following provisions of the draft Treaty establishing a Constitution for Europe with the current treaty provisions (se part I), we notice that the European Convention strived to abolish the present split between two pillars concerning justice and home affairs and to overhaul the disparate provisions into a readable whole.

The goal was to advance from intergovernmental bickering to somewhat more effective action, for which Article III-158 set the framework, although the subject matter is mentioned in the current treaty provisions.

Étienne de Poncins described the work of the Convention in the following words (Vers une Constitution européenne, Éditions 10/18, 2003; page 354):

« Commentaire : l’ensemble des dispositions relatives à l’espace de liberté, de sécurité et de justice ont été revues par la Convention et, plus particulièrement, par le groupe de travail X. La suppression de la structure en piliers a permis de regrouper l’ensemble des dispositions sous un même chapitre alors qu’elles sont aujourd’hui dispersées entre le traité de l’Union (TUE) et celui de la Communauté européenne (TCE). La définition de l’espace de liberté, de sécurité et de justice a été profondément revue et adaptée afin de rendre plus lisible l’action de l’Union dans ce domaine prioritaire. »

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Article III-257 (presented in part I) of the Treaty establishing a Constitution for Europe took over the corresponding draft text with nothing more than minor editorial changes.

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The IGC 2007 Mandate (Council document 11218/07) went into the justice and home affairs provisions in some detail (Part III ‘Amendments to the EC Treaty’, page 8, point 19):

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h) Article 60 (freezing of assets to combat terrorism), as amended in the 2004 IGC, will be transferred towards the end of the Chapter on general provisions in the Title on the Area of freedom, security and justice.

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j) In the Chapter on general provisions applying to the area of freedom, security and justice, insertion of a provision about cooperation and coordination by Member States in the field of national security (see point 2)(a) of Annex 2).

k) In the Chapter on judicial cooperation in civil matters, paragraph 3 of the Article on such cooperation, as agreed in the 2004 IGC, will be modified so as to give a role to national parliaments in the "passerelle" clause on family law (see point 2)(b) of Annex 2).

l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.

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The IGC 2007 Mandate Annex 2 concerning amendments to the EC Treaty, with modifications compared with the results as agreed in the 2004 IGC, detailed the changes mentioned above (page 15-16). The asterisk indicated that the innovations to be inserted were the same as those agreed by the 2004 IGC:


2) Replacement, as agreed in the 2004 IGC, of Title IV with the provisions of a new Title on the area of freedom, security and justice*, which includes 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) and Chapter 5 (police cooperation).

(a) In Chapter 1 (general provisions), insertion in [Article III-262] of the following new second subparagraph:

"It shall be open to Member States to organize between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security."

(b) In Chapter 3 (judicial cooperation in civil matters), replacement of paragraph 3 of [Article III-269] as follows:

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the second subparagraph shall not be adopted. In the absence of opposition, the Council may adopt the decision."
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(c) In Chapter 4 (judicial cooperation in criminal matters), replacement of, respectively, paragraphs 3 and 4 of [Article III-270] and of [Article III-271] by the following:

"3. Where a member of the Council considers that a draft directive as referred to in [paragraph 2 of III-270] [paragraphs 1 or 2 of III-271] would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."

(d) In Chapter 4 (judicial cooperation in criminal matters) and in Chapter 5 (police cooperation) insertion of the following new last subparagraphs, respectively, in paragraph 1 of [III-274] and in paragraph 3 of [Article III-275]:

"In case of absence of unanimity in the Council, a group of at least 9 Member States may request that the draft [regulation/measures] be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft [regulation/measures] concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."

[in III-275(3) only: "The specific procedure provided in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis."].

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The area of freedom, security and justice is clearly strengthened by the Lisbon Treaty as one of the core policy areas of the European Union.

It is mentioned in the preamble to the amended Treaty on European Union:

“RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty and of the Treaty on the Functioning of the European Union”

It is mentioned among the principal aims of the Union, in Article 3(2) TEU:

“2. The Union shall offer its citizens an area of freedom, security and justice without internal
frontiers, in which the free movement of persons is ensured in conjunction with appropriate
measures with respect to external border controls, asylum, immigration and the prevention and
combating of crime.”

It is mentioned as a shared competence in Article 4(2)(j) TFEU.

It is the subject of the new and detailed TFEU Title V, comprising Articles 67 to 89 (plus various relevant provisions elsewhere).

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What does the Treaty of Lisbon do?

The rough-and-ready description would be that Article 67 TFEU lays the groundwork for applying ‘Community’ principles to police and judicial cooperation along the lines of the Constitutional Treaty (and ultimately the European Convention).

But the devil is in the details:

Special limitations and procedures have been inserted by the IGC 2007. There are Protocols and Declarations to take into account.

Even with these complex limitations, the reform moves apply to most, but not to all member states: 24 out of 27.

Three member states – Denmark, Ireland and the United Kingdom – have opt-outs, underlining the impression of a multi-speed Europe.

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Here are some suggestions for further reading on the area of freedom, security and justice:

For a readable presentation in English for the non-specialist, you could read the EU Reform Treaty White Paper of the government of Ireland, Chapter 9 ‘Freedom, Security and Justice’ (pages 66 to 72).

Professor Steve Peers has analysed the JHA provisions (Analysis no 1.3) for the Statewatch Observatory on the EU Constitution-Reform-Lisbon Treaty (as it is now called), with a packed three page introduction and a further section with highlighted changes and comments (21 pages in all).

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ describes the treaty proposals in section E. ‘Area of freedom, security and justice’ on pages 31 to 56.

The European Union Committee of the UK House of Lords pored over JHA affairs in Chapter 6 ‘Area of Freedom, Security and Justice’ in ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ from page 110 to page 177.

Sweden: The consultation paper (Green Paper) of the Swedish government describes the proposed changes in section 22.4 ‘Ett område med frihet, säkerhet och rättvisa’. Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48; page 295 to 330.

Finland: The ratification bill of the Finnish government (HE 23/2008 vp) contains an overview in section 3.2.4.2.2. ‘Vapauden, turvallisuuden ja oikeuden alue’ on pages 81–90. The same text is available in the Swedish version of the bill (RP 23/2008 rd).


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Opt-outs

The 28 pages of ‘EU Reform Treaty Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’, by Steve Peers for Statewatch, advances from an introduction to the detail of adopted measures.

The UK Foreign and Commonwealth Office (FCO) web page ‘Myth and facts on justice and home affairs in the Lisbon Treaty’ gives an indication of the discordant British debate (but has not caught up with the latest wild allegations that the EU is reintroducing the death penalty):

http://www.fco.gov.uk/en/newsroom/latest-news/?view=News&id=1534108



Under the Treaty of Lisbon, Denmark would continue to have its four opt-outs, but in its positive ratification report the EU Committee of the Danish Parliament points to the possible referendum on abolishing the opt-out concerning justice and home affairs. Betaenkning over Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faellesskaber og Den Europaeiske Union (14. marts 2008, til lovforslag nr. L 53, s. 9):

http://www.euo.dk/upload/application/pdf/069fb9b9/20072L537.pdf

According to the Danish daily Politiken, prime minister Anders Fogh Rasmussen has spoken of a referendum later in the year on abolishing one or more Danish opt-outs:

http://politiken.dk/politik/article490778.ece

It is unclear how many opt-outs the Danes will get to vote on, but in any case it is going to happen after the imminent ratification of the Lisbon Treaty.


Ralf Grahn


EU Treaty sources:

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