Although the European Union has created the conditions for the free movement of crime, the EU area of freedom, security and justice remains a patchwork. Common rules on judicial and police authorities operating in the territory of another member state remain outside the ordinary legislative procedure, subject to unanimity in the Council. Even if there were common rules, the concrete operations would take place in liaison and in agreement with the turf state.
Here the EU Treaty of Lisbon does nothing to upset the sensibilities of member states or organised crime.
Article 89 of the Treaty on the Functioning of the European Union (TFEU) lays out the special legislative procedure for operating in the territory of another member state. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU 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 89 TFEU
(ex Article 32 TEU)
The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
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: …
The treaty then presented the text of Article 69h TFEU (ToL) as above, but in the consolidated version the Article and the provisions referred to were renumbered according to the TFEU table of equivalences (page 210). Article 69h TFEU (ToL) became Article 89 TFEU.
The current Article 32 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, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/26):
Article 32 TEU
The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State.
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, but not all the intergovernmental practices. Under Section 5 ‘Police cooperation’, Article III-178 of the draft Treaty establishing a Constitution for Europe continued in the footsteps of Article 32 TEU (OJ 18.7.2003 C 169/61):
Article III-178 Draft Constitution
A European law or framework law of the Council of Ministers shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles III-171 and III-176 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council of Ministers shall act unanimously after consulting the European Parliament.
The corresponding provision is Article III-277 of the Treaty establishing a Constitution for Europe. The ‘Council of Ministers’ became the ‘Council’ in the Constitutional Treaty, and the Articles referred to were numbered differently, but the rest of the wording was identical to the draft (OJ 16.12.2004 C 310/122).
The Treaty of Lisbon uses different terms for legislative instruments, but the essence of Article 89 TFEU remains exactly the same as in the Constitution and thus the draft Constitution before that.
Materially, the new provision takes over the contents of the current Article 32 TEU.
We turn to additional comments and further reading on Europol. First, short comments from Great Britain, and then UK sources where these questions may be dealt with more 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 69h TFEU (ToL), Article 89 TFEU (page 21):
“This is identical to the current Article 32 TEU.”
The JHA analysis and other useful Statewatch analyses are available through:
The Foreign and Commonwealth Office (FCO) in its 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), presented the following summary of the results with regard to Article 89 TFEU, Article 69h TFEU (ToL) in the original Lisbon Treaty:
“In substance the same as Article 32 TEU.”
The FCO comparative table is available at:
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’.
Papers like this tend to concentrate on changes, so the coming Article 89 TFEU is dealt with summarily (page 52):
“Article 69H (Constitution Article III-277), on operations on the territory of another Member State, largely reproduces the wording of the present Article 32 TEU, which is subject to unanimity and consultation with the EP.”
The Library Research Paper 07/86 is available at:
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), but I failed to find any mention of Article 89 TFEU.
The report is accessible at:
Even the systematic Nordic governments find fairly little to say about a provision, which remains within the ambit of intergovernmental legislation, essentially unchanged.
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, has a headline ‘Agerande på en annan medlemsstats territorium’ (page 330). The text describes rule-making based on unanimity concerning operations by the authorities engaged in judicial cooperation in criminal matters and police cooperation in the territory of another member state.
The paper refers to the rules on ‘hot pursuit’ in the Schengen acquis, and to the special provision concerning Europol.
The consultation paper ’Lissabonfördraget’ is available at:
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), describes Article 69h TFEU (ToL), renumbered Article 89 TFEU (page 205).
The Finnish ratification bill is available at:
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 explanation on page 208.
The ratification bill in Swedish can be accessed at:
A few additional comments on operations in the territory of another member state.
Article 89 TFEU applies to the competent authorities of the member states referred to in Articles 82 and 87.
Article 82 TFEU concerns judicial cooperation in criminal matters, and in 82(1)(d) the expression ‘judicial or equivalent authorities’ is used.
Article 87 TFEU regards police cooperation, including police, customs and other specialised law enforcement services.
With or without common rules (conditions and limitations), operations in the territory would anyhow be subject to some minimum consent by that state (in liaison and in agreement with the authorities of that state).
We may find some consolation in the relevant document of the European Convention (CONV 614/03, Annex, page 33):
“Council unanimity and consultation of the European Parliament are provided for. Of course, neither this article, no[r] the other articles under this Title, aim to prevent those Member States which so desire from concluding bilateral agreements providing for closer cooperation between their respective authorities.”