Wednesday, 30 April 2008

EU TFEU: Police and criminal justice initiatives

The Treaty of Lisbon retains a right for member states – at least a quarter of them – to take initiatives in the fields of judicial cooperation in criminal matters and police cooperation.

Is the extension of the ‘Community method’ a welcome reform in the EU area of freedom, security and justice (FSJ) or justice and home affairs (JHA)? Is the residual right of initiative for member states a positive contribution or the sign of a timid approach to reform?

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Article 76 of the Treaty on the Functioning of the European Union (TFEU), the last of Chapter 1 with general provisions, is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 98), 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 76 TFEU

The acts referred to in Chapters 4 and 5, together with the measures referred to in Article 74 which ensure administrative cooperation in the areas covered by these Chapters, shall be adopted:

(a) on a proposal from the Commission, or

(b) on the initiative of a quarter of the Member States.

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In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61i TFEU (ToL), which became Article 76 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).

The referral to the measures which ensure administrative cooperation in the original Lisbon Treaty was to Article 61g TFEU (ToL), which became Article 74 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).

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There are no directly corresponding provisions in the current Treaty on European Union (TEU) or the Treaty establishing the European Community (TEC). Cf. the latest consolidated version of the current treaties, in (OJ 29.12.2006 C 321 E/1).

But in the existing TEU Title VI on police and judicial cooperation in criminal matters, Article 34(2) TEU spells out that the Council shall take measures and promote cooperation acting unanimously on the initiative of any member state of the Commission (OJ 29.12.2006 C 321 E/26).

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The European Convention modified the move of intergovernmental police and judicial cooperation in criminal matters (third pillar) to the unified EU structure (where the ‘Community method’ or ‘third pillar’ principles reigned) by retaining a residual right of initiative for a quarter of member states. The proposed Article III-165 of the draft Treaty establishing a Constitution for Europe served this purpose (OJ 18.7.2003 C 169/58):

Article III-165 Draft Constitution

The acts referred to in Sections 4 and 5 of this Chapter shall be adopted:

(a) on a proposal from the Commission, or

(b) on the initiative of a quarter of the Member States.

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The IGC 2004 took over the text proposed by the European Convention, but added the regulations which ensured administrative cooperation in the areas of police and judicial cooperation in criminal matters to the scope of the provision (OJ 16.12.2004 C 310/114):

Article III-264 Constitution

The acts referred to in Sections 4 and 5, together with the European regulations referred to in Article III-263 which ensure administrative cooperation in the areas covered by these Sections, shall be adopted:

(a) on a proposal from the Commission, or

(b) on the initiative of a quarter of the Member States.

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If we disregard the technical changes, we see that the IGC 2007 adopted the text of its predecessor, the IGC 2004, in accordance with the general rule on amendments to the TEC in the IGC 2007 Mandate: ‘The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.’ (See Council document 11218/07, point 18, page 7.)

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The main rule within the European Community (future European Union), as part of the so called institutional balance, is the Commission’s monopoly to propose legislative acts (except where the treaties provide otherwise). In addition, the Commission proposes other acts where the treaties so provide.

The most up-to-date expression of these principles, which set the European Community (European Union) apart from traditional treaty based international organisations, is Article 17(2) TEU in the Council’s consolidated version of the Lisbon Treaty (document 6655/08, page 32).

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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) discussed the right of initiative on page 123 and 124. The report presents the general background, the right of initiative for member states under Article 76 TFEU and the witnesses’ views on the problems connected with member states’ initiatives.

For the convenience of readers I quote the text here:

“The right of initiative

6.67. Under the Treaty of Lisbon the right to propose EU legislation—the right of initiative—will generally rest with the Commission, although in some circumstances Member States (and in limited cases other institutions) have the power to make a proposal for legislation.

i. Arrangements under the existing Treaties

6.68. While Title IV is subject to the “Community method” and therefore the Commission has exclusive right of initiative in respect of proposals for Community legislation, in Title VI the right of initiative is shared by the Commission and the Member States. In practice the majority of proposals emanate from the Commission, but any Member State may make a proposal for a Framework Decision and many have done so.

ii. Position post-Treaty of Lisbon

6.69. New Article 76 provides that measures in Chapters 4 and 5 of new Title V TFEU (i.e. measures relating to police and judicial cooperation in criminal matters—old Title VI TEU) shall be adopted on a proposal from the Commission or on the initiative of a quarter of the Member States. Thus some element of the Member States’ right of initiative has been retained, albeit in a more limited form.

6.70. The Law Societies welcomed the change. They considered that this would ensure a more coordinated and coherent approach to legislation, planned in line with long-term EU strategies rather than being based on topical national considerations (pp E99, E163).

6.71. Maria Fletcher regretted the retention of any right of initiative for Member States under the Treaty of Lisbon. She pointed to practical experience of Member States’ proposals, which in her view had been problematic to date: Member States tended to make proposals reflecting, to a disproportionate degree, domestic problems and proposals were often inadequately drafted. She considered that the Commission was better placed to submit proposals given that it acted in the interests of the Union and had the capacity and expertise to consult widely and conduct impact assessments (p E150). This was a view shared by FTI, which expressed regret that Member States would not be required to produce similar assessments when making use of their right of initiative (p E147).

6.72. Not all proposals in the area of FSJ, whether they emanate from Member States or the Commission, are supported by the statistical and other evidence critical for assessing the need for proposed legislation, and especially its compliance with the subsidiarity principle. The problem is greater with Member States’ initiatives: while the Commission always provides an explanatory memorandum and sometimes provides an impact assessment, Member States rarely provide either.”


The report is accessible at:

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



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


In addition, two ‘private’ annotated and consolidated versions including the Treaty of Lisbon amendments can be pointed out.

Peadar ó Broin, of the Institute of International and European Affairs (Dublin), has edited a consolidated and annotated version of the EU treaties as amended by the Treaty of Lisbon. The highlighted IIEA shows the differences between different stages. It is available through the web page of the European Policy Institutes Netword (EPIN):

http://www.epin.org/new/files/AnnotatedTreaties.pdf


Jens-Peter Bonde has issued a ‘Consolidated Reader-Friendly Edition’ of the TEU and the TFEU as amended by the Treaty of Lisbon. There are remarks about changes are in the margin and symbols are used to show amendments. The consolidation is available at:

http://www.j.dk/exp/images/bondes/Consolidated_LISBON_TREATY_3.pdf

The Irish Referendum Commission is gathering speed in its campaign to inform the public ahead of the 12 June 2008 Lisbon Treaty referendum. At this point in time it is possible to find information about the essential treaty changes boiled down to a few pages for the busy reader:

http://www.lisbontreaty2008.ie