Sunday, 27 April 2008

EU TFEU: Member states and national security cooperation

As a corollary to the exclusionary powers of each member state to provide ‘national security’, the Treaty of Lisbon spells out the freedom of the member states of the European Union to cooperate and coordinate their actions as the see fit, outside the EU structures and under their responsibility.

Is this a fruitful approach to enhancing the security for EU citizens?


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Article 73 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 73 TFEU

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

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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 61f TFEU (ToL), which became Article 73 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 308/58).

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The IGC 2007 Mandate mentioned the insertion of a provision about cooperation and coordination by member states in the field of national security as one of the modifications compared to the results of the IGC 2004 (Council document 11218/07, pages 7 – 8, point 19j). Point 2(a) of Annex 2 (page 15) spelt out the text of what then called the ‘following new second subparagraph’, but became Article 73 TFEU with almost identical wording.

Annex 1, point 4 (page 12), contained the amendments to be made in what was to become Article 4 TEU, including the sentence added to the end of the second paragraph: ‘In particular, national security remains the sole responsibility of each Member State’. – We mentioned the amended Article 4(2) TEU in yesterday’s post on Article 72 TFEU, when we wondered at what appeared to be a lack of discussion on the merits of this go-it-alone approach.

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As the brainchild of the IGC 2007, Article 73 TFEU has no corresponding provision in the current treaties, the draft Constitution or the Constitutional Treaty.

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Here are a few thoughts for you, dear readers, to develop further and possibly to discuss:

The member states of the European Union have introduced the term ‘national security’ into the EU treaties.

‘National security’ has been resolutely excluded from the scope of EU competences, by declaring it to be the sole responsibility of each member state, while ‘internal security’ is to some extent an area for EU action.

Member states may (as a meaningless consolation?) or may not cooperate or coordinate their actions between themselves in the field of ‘national security’, outside the EU structures and under their sole responsibility, as they see fit.

The only treaty obligations coming to my mind at this point seem to be of a negative kind and quite general in nature: to refrain from any measure which could jeopardise the attainment of the Union’s objectives (Article 4(3) TEU).

The troubling aspect is that ‘national security’ is centred on exclusionary turf thinking – to shut the EU and the other member states out from meddling in ‘our’ affairs – while evading the questions about what would be conducive to an enhanced level of security for citizens of the European Union.

Are the public goods delivered less important than the monopoly to handle or mishandle these affairs?


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