Sunday, 11 May 2008

EU TFEU: Police cooperation

In an era of cross-border crime, effective police cooperation is needed between the member states of the European Union. The Treaty of Lisbon applies qualified majority voting in the Council and the ordinary legislative procedure (co-decision) some measures contributing to the fight against crime.

Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.


***

Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):

Part Three ‘Policies and internal actions of the Union’

Title V TFEU ‘Area of freedom, security and justice’

Chapter 5 ‘Police cooperation’

Article 87 TFEU
(ex Article 30 TEU)

1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:

(a) the collection, storage, processing, analysis and exchange of relevant information;

(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;

(c) common investigative techniques in relation to the detection of serious forms of organised crime.

3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.

In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.

***

In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):

POLICE COOPERATION

68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …

Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).

***

The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):

Article 30 TEU

1. Common action in the field of police cooperation shall include:

(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;

(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;

(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;

(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.

2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:

(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;

(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;

(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;

(d) establish a research, documentation and statistical network on cross-border crime.

***

We look at the previous stages of the treaty reform process.

The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).

Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):

Section 5
Police cooperation

Article III-176 Draft Constitution

1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.

2. To this end, European laws or framework laws may establish measures concerning:

(a) the collection, storage, processing, analysis and exchange of relevant information;

(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;

(c) common investigative techniques in relation to the detection of serious forms of organised crime.

3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.

***

The IGC 2004 adopted the text of the European Convention without substantial change.

This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):

Section 5
Police cooperation

Article III-275 Constitution

1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.

2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:

(a) the collection, storage, processing, analysis and exchange of relevant information;

(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;

(c) common investigative techniques in relation to the detection of serious forms of organised crime.

3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.

***

The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):

“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”

***


The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).

With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.

Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.

According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.

If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.

***

United Kingdom

We turn to additional comments and further reading on EU police cooperation. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.

In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69f TFEU (ToL), Article 87 TFEU (page 20):

“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”

“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”

The JHA analysis and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:

“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

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) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).

‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.

The report is accessible at:

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

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border cooperation.

The consultation paper ’Lissabonfördraget’ is available at:

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

***

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) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).

The Finnish ratification bill is available at:

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

The Swedish language version of the 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), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.

The ratification bill in Swedish can be accessed at:

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


Ralf Grahn