The European Council is arguably the most powerful institution – and becoming a real one – according to the Treaty of Lisbon. Tasking the European Council with issuing strategic guidelines within the area of freedom, security and justice (FSJ) does nothing to diminish its role.
We look at the second new Lisbon Treaty provision on justice and home affairs (JHA).
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 68 TFEU
The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.
The intergovernmental conference was content to present the wording of the new Article 61a, which became Article 68 TFEU after renumbering (OJ 17.12.2007 C 306/57).
There is no directly corresponding Article in the present treaties.
In Article III-159 of the draft Treaty establishing a Constitution for Europe, the European Convention proposed exactly the wording now adopted by the Lisbon Treaty (OJ 18.7.2003 C 169/57).
Article III-258 of the Treaty establishing a Constitution for Europe passed on the proposal, unchanged (OJ 16.12.2004 C 310/113).
In other words, we have an unbroken line from the European Convention to the TFEU, with only a number of years wasted in between.
The European Council, arguably the most important institution of the EU in the light of the Treaty of Lisbon, already has general powers of the kind envisioned in Article 68 TFEU. Here is the wording of Article 15(1) TEU on the tasks of the European Council:
Article 15(1) TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
But a special provision in the context of justice and home affairs and the more precise wording add emphasis to the role of the European Council, as indicated by the Finnish ratification bill (HE 23/2008 vp; page 82).
On the other hand, the change is hardly dramatic. The Irish EU Reform Treaty White Paper states that the provision is in line with current practice (page 67, point 6), and the Swedish consultation paper (Lissabonfördraget, Ds 2007:48; page 299) adds some detail:
”Artikeln kan sägas fördragsfästa en ordning som under senare år har etablerats genom de handlingsprogram för samarbetsområdet som antogs vid Europeiska rådets möten i Tammerfors och Haag (det s.k. Haagprogrammet).”
In other words, the government of Sweden speaks of the Tampere and Hague programmes as examples of the practice to be codified.
The UK House of Commons Library Research Paper 07/86 (page 33) is content to mention the task given to the European Council, without offering a value judgment. I failed to find any mention in the voluminous report by the UK House of Lords European Union Committee ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I).
Surely, we can conclude that the new provision is no bone of contention between the governments of the member states.
A more critical view would have to come from “outside the box”, regarding the role of the European Council in the scheme of things.
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: