Saturday, 26 April 2008

EU TFEU: Member states and internal security

The UK government has stressed the importance of retaining full control of national security. But a quick view at Lisbon Treaty provisions concerning ‘internal security’ and ‘national security’ fails to unearth substantial evidence on or even discussion about how the government’s approach will enhance the security of British nationals (or EU citizens).

Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?

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Article 72 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 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)

This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

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In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).

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Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:

Article 64(1) TEC

1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.



Article 33 TEU

This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.

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In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).


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The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).


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The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.

The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.

On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):

Article 4(2) TEU

“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”

Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.


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Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.

This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:

« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »

The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.

The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’

What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):

“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”

On page 10, the UK government added some detail to its line on national security:

“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”

The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.

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Ireland

In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.

The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. 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 Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:

http://www.iiea.com/publicationxtest.php?publication_id=33


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United Kingdom

Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.


What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’

The Comparative Table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf


The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:

‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’

(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)

The Library Research Paper 07/86 is accessible at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf


In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:

http://www.statewatch.org/euconstitution.htm

In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.

Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’


The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).

The report is available at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:

“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.

6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”

I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.

But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?



Ralf Grahn


EU Treaty materials:

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