Wednesday, 23 April 2008

EU TFEU: National parliaments in criminal matters and police cooperation

In EU criminal matters and police cooperation the national parliaments are given a lower than usual threshold to force a rethink of a legislative proposal on the grounds of subsidiarity, the principle meaning that decisions should be taken as closely as possible to the citizens of the European Union.

The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.


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Article 68 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 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 69 TFEU

National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.

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In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).

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There is no directly corresponding Article in the present treaties.

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The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):

Article III-160 Draft Constitution

1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.

Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.

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The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):

Article III-259 Constitution

National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.

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We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.

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Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.

First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.

At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).

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Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).

The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):

“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.

After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”

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Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.

The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.


Ralf Grahn


EU Treaty sources:

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