Thursday, 24 April 2008

EU TFEU: Peer review in the area of freedom, security and justice

In EU justice and home affairs (JHA), or the area of freedom, security and justice (FSJ), the Treaty of Lisbon brings about some real change, at least for the 24 member states committed to more effective decision-making in this evolving core policy area.

But is the special intergovernmental JHA or FSJ peer review an indication that the governments believe at least as much in a soft-pedalling approach as in European legislation to achieve a free flow of justice within the European Union?


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Article 70 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 70 TFEU

Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.

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In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording of the new Article 61c, which became Article 70 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).

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There is no directly corresponding Article in the present treaties. Cf. TFEU Table of equivalences, OJ 17.12.2007 C 306/209.

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The European Convention proposed the following Article III-161 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):

Article III-161 Draft Constitution

Without prejudice to Articles III-265 to III-267, the Council of Ministers may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and Member States' national Parliaments shall be informed of the content and results of the evaluation.

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The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minimal stylistic change in Article III-260 (OJ 16.12.2004 C 310/113).

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Since the proposed Article 70 TFEU is essentially (with technical modifications) the same as Article III-260 of the Constitutional Treaty, we can conclude that the new provision is in substance the work of the broadly based European Convention, although more than five years will have been wasted before its labours bear fruit, if the Treaty of Lisbon enters into force according to the wishes of all member state governments and a growing number of ratifying parliaments.

If we take the agreement on the unsatisfactory Treaty of Nice as our starting point for the treaty reform cycle, the corresponding time is longer: about eight years.

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What does the new Artilcle 70 TFEU mean?

As a name ‘objective and impartial evaluation of the implementation of the Union policies referred to in this Title’ is even more unwieldy than that of its sibling the ‘open method of coordination’ (OMC).

The Wikipedia article ‘Open Method of Coordination’ could serve to give the reader a view of what to expect from this kind of ‘soft law’ approach, based on voluntary intergovernmental cooperation (latest update 6 December 2007):

http://en.wikipedia.org/wiki/Open_Method_of_Coordination

Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Fourth edition, Oxford University Press, 2007) discusses the open method of coordination in the context of Chapter 5 ‘New forms of governance’ (page 144 to 166).

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Ireland: In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland speaks of ‘peer review’, a term gratefully adopted by this writer.

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The basically intergovernmental nature of the peer review – in spite of proposals from and collaboration by the Commission – is shown by the language of the provision, including the sentence on the parliaments: ‘The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.’

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United Kingdom: Chapter 11: national parliaments – the democratic challenge, of the House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessmen, Volume I: Report’ (HL Papere 62-I, published 13 March 2008) is a detailed discussion of the role of national parliaments, with a fleeting mention of ‘Taking part in evaluation of EU policies in the area of freedom, security and justice (see also new Article 70 TFEU)’, on page 234. The Peers' review is accessible at:

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

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Finland: The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) follows the Nordic tradition of government proposals explaining each amendment. The description of Article 61c ToL, renumbered Article 70 TFEU, is found on page 189. The bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

Finnish government proposals and legislation are available in Swedish. The same ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), with the relevant description on page 192, can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

The ratification bill is now at the committee stage, with the Foreign Affairs Committee expecting opinion from other parliamentary committees by 9 May 2008. Ratification for the Finnish mainland is expected before the summer recess.

The autonomous province of the Åland Islands with a special status (Protocol) within the EU may protract its approval or rejection of the Lisbon Treaty while trying to extract concessions from the Finnish government and exploring the consequences of a possible rejection (including a future outside the European Union).

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Sweden was among the one third of EU member states which either suspended ratification of the Constitutional Treaty or where the ratification failed (France, the Netherlands).

While soon a third of the member states has ratified the Treaty of Lisbon, Sweden started a consultation process with the hefty paper ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007.

The consultation process ended 25 March 2008, and the government is mulling over the responses and preparing its ratification bill. As far as I have seen, the Swedish government has yet to announce a clear date for issuing the bill. On a web page dated 31 March 2008 ‘Ett nytt fördrag för EU’ the government reiterates that parliamentary ratification will apply, and obliquely mentions that ‘the idea is’ that the new treaty will enter into force in January 2009:

http://www.regeringen.se/sb/d/9242/a/89146

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

Back to today’s provision, which is briefly mentioned on page 300 of ‘Lissabonfördraget’.

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‘Without prejudice to Articles 258, 259 and 260’ refers to provisions of the consolidated TFEU dealing with infringement procedures against member states against failure to fulfil treaty obligations (Council document 6655/08, pages 210-211).

This in itself means that legislative acts are possible in the EU area of freedom, security and justice, and that peer review is not, on the whole, an alternative to EU legislation, but a complement.

Time will tell how the relations between intergovernmental peer review and EU legislation will play out in justice and home affairs, known as the area of freedom, security and justice.



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