From Libya to Brazil, interior goes international (EU Justice and Home Affairs Council)

Only the first day conclusions were posted on the Consilium front page, but the Justice and Home Affairs (JHA) Council was a two day meeting. For those who may have missed the conclusions by the justice ministers and ministers of the interior of the EU member states reflecting both days of the meeting, here they are:

3071st Council meeting Justice and Home Affairs; Brussels, 24 and 25 February 2011 (Council document 7012/11; 20 pages)

In the shadow of events in Northern Africa, especially the barbaric repression in Libya, and pressures from asylum seekers and unauthorised migrants in the Southern member states of the European Union, including a future readmission agreement with Turkey, some important, but less mediatic issues were on the agenda.

These other matters included the Internal Security Strategy (ISS) of the EU, attacks against information systems, jurisdiction in civil and commercial matters (Brussels I), the right to information in criminal proceedings, the migration of the EJN-network to the European e-Justice portal, remembering the crimes committed by totalitarian regimes in Europe, collective redress and the enforcement of court decisions in third countries concerning custody.

In the margins of the Council meeting, the Mixed Committee with Iceland, Liechtenstein, Norway and Switzerland discussed a number of issues related to the Schengen borders: the Schengen Information System II (SIS II), the Visa Information System (VIS), the 2011 work programme of the European border agency Frontex, the accession of Bulgaria and Romania to the Schengen area, the Visa liberalisation process for the Western Balkans, visa waiver reciprocity and Canada's unilateral visa requirements for Czech nationals, and Liechtenstein's Schengen accession procedure.

Further, the Council concluded two visa liberalisation agreements with Brazil, adopted conclusions regarding the Charter of Fundamental Rights of the European Union, adopted conclusions about personal data protection in the EU, took note of a report about combating drug traficking from West Africa, adopted a decision to create a Subcommittee on Political Dialogue, Security and Human Rights with Algeria, decided to renegotiate a monetary agreement with Monaco, and decided to sign a fisheries agreement with São Tomé and Príncipe.


Interior goes international

A hefty agenda; just naming the issues, I almost ran out of breath.

It was also a wide-ranging agenda. As we saw, the issues ranged from Libya to Brazil, passing through Algeria, Canada, Iceland, Liechtenstein, Norway, São Tomé, Switzerland, Turkey and the Western Balkans on the way, but they end up as justice and home affairs (in French: Justice et affaires intérieures, JAI) for the European Union and its member states.

Traditionally, justice and home affairs (freedom, security and justice, FSJ) were the essence of domestic politics and policies, but nowadays it is increasingly impossible to escape the need for rules and practices to deal with cross-border and international issues and aspects.



Ralf Grahn



P.S. Charlemagne's notebook is one of the ”must read” blogs on European affairs, partly because its roots in the British soil.


P.S. 2: As an overview for those interested, here are the latest entries on my Euroblogs, three unilingual and one trilingual.

Grahnblawg (in Swedish): EU-rådet för allmänna frågor 21 februari 2011: Bedrövlig förhandsinformation

Grahnlaw Suomi Finland (in Swedish): EU-rådet för allmänna frågor: Vad gör Norden?

Grahnlaw: EU General Affairs Council (GAC) communication: Wrong, stupid and a missed opportunity

Grahnlaw Suomi Finland: EU cohesion policy conclusions reveal lack of transparency

Eurooppaoikeus (in Finnish): Mitä EU:n alue- ja rakennepolitiikasta puuttuu Suomessa?

Grahnlaw Suomi Finland (in Finnish): Yhteisvastuu Euroopan unionissa: Kysyntää riittää


If you share my interest in the European economy, EU business, politics or law, we could get acquainted through Twitter @RalfGrahn or Facebook.

Concrete benefits to EU citizens on the move

After the general press release available in 22 EU languages and mentioned in the previous blog post, we turn to how the European Commission presented its reform package for citizens' rights in more detail (only in English):

European Commission adopts plan to bring concrete benefits to EU citizens on the move; Brussels, 27 October 2010, MEMO/10/525

The Commission referred to the citizenship report by Alain Lamassoure MEP (which I have presented earlier on my blogs) before offering a few figures about the issues:

In 2009, about 11.9 million EU citizens were living outside their home Member State. The number of complaints and enquiries that the Commission receives from citizens every year is rising: in 2009 the Europe Direct Contact Centre received 25,721 enquires on cross-border issues, including travelling, buying and selling, studying, working and living in other Member States. Today's plan responds to many of these concerns.

As we see, almost 12 million EU citizens live in a permanent cross-border situation, whereas huge numbers make more or less brief 'visits', through business or leisure travel, by being posted abroad for a limited time, or through online buying.

The Commission presented examples of five reform initiatives, concerning car registration, cross-border healthcare and Ehealth technologies, consular protection, package travel, and improving information for EU citizens.

The Commission then offered brief outlines of 25 planned actions to improve the daily life of EU citizens.



Ralf Grahn



P.S. Part of the BBC's coverage of EU affairs, Gavin Hewitt's Europe is one of the “must read” Euroblogs in English.

Improving cross-border rights for EU citizens

A month ago, Michel Barnier and Viviane Reding chose to join forces to launch reforms in order to improve the internal market and citizens' rights. The joint press release from the European Commission offers an overview (and it is available in 22 EU languages):

European Commission sets out plans to strengthen the Single Market with measures to boost growth and enhance citizens’ rights; Brussels, 27 October 2010, IP/10/1390

The two members of the Commission found a common theme when they stated that businesses and citizens know that hurdles still exist when they exercise their rights.


Cross-border rights

The Commission promised 25 measures to improve the rights of EU citizens. Before we go into details, here are the main points:

The first-ever EU Citizenship Report looks at everyday problems faced by citizens when they exercise their EU rights and extend aspects of their lives beyond national borders: when they travel, study, work, get married, buy a house or car in another EU country. The report includes 25 measures the Commission plans to take in the next three years to make life easier for European citizens:

Tourists/ Expatriates: The Commission will update the rules protecting holiday makers from, for example, bankruptcy of their travel provider during their holiday (IP/09/1824). The Commission will also propose additional ways to strengthen the rights of passengers in all modes of transport and enforce the rights of air passengers (e.g. in case of long delays and cancellations).The Commission will further reinforce the right to consular protection for EU citizens whose home Member State is not represented in third countries, by strengthening the legal framework and increasing awareness among citizens and consular officials.

Consumers: the Commission will help consumers get redress if they have problems with a trader, by facilitating the fast and inexpensive out-of-court resolution of disputes across borders, through the promotion of alternative dispute resolution and mediation.

Couples: the Commission will propose legislation to make it easier for international couples to know which courts have jurisdiction and which country's law applies to their jointly owned house or bank accounts.

Workers: the Commission is developing a new system of electronic exchange of information between national administrations so as to make it simpler and quicker for people working in another EU country to transfer their social security rights.

Car owners: the Commission will propose legislation to simplify the paperwork and formalities for the registration of cars bought in another EU country and will address cases in which citizens are required to pay registration tax twice.

In the near future posts on my blogs will look at individual documents and proposals regarding EU citizens. Only later will we (re)turn to internal market reform.



Ralf Grahn



P.S. 'Democracy and accountability at all levels of government' is the motto of the Federal Union. Federalism at the European level is consequently one of the themes for the Federal Union Blog, which strives to be a voice of learning and reason.

EU: New Regulation on cross-border payments

The Single Euro Payments Area (SEPA) takes a further step towards completion. The Payment Services Directive (PSD) 2007/64/EC, which will be implemented from 1 November 2009, is going to be complemented by a new Regulation on cross-border payments, which extends the principle of equal charges for national and cross-border payments to direct debits.

***

European Parliament

The European Parliament has approved the text of a new Regulation on cross-border payments. At this stage, the adopted text can be found in the compilation of resolutions adopted on Friday 24 April 2009 (from page 129).


Here are the exact references:

P6_TA-PROV(2009)0321

Cross-border payments in the Community ***I

European Parliament legislative resolution of 24 April 2009 on the proposal for a regulation of the European Parliament and of the Council on cross-border payments in the Community (COM(2008)0640 – C6-0352/2008 – 2008/0194(COD))
(Codecision procedure: first reading)

***

Scope

Article 1 of the new Regulation presents its scope:

Article 1

Subject matter and scope

1. This Regulation lays down rules on cross-border payments within the Community, ensuring that charges for those payments are the same as those for payments in the same currency within a Member State.

2. This Regulation applies to cross-border payments, in accordance with the provisions of Directive 2007/64/EC, which are denominated in euro or in the national currencies of the Member States which have notified their intention to extend the application of the Regulation to their national currency, in accordance with Article 14.

3. This Regulation does not apply to payments made by payment service providers for their own account or on behalf of other payment service providers.

4. Articles 6, 7 and 8 lay down rules regarding direct debit transactions denominated in euro between the payment service providers of the payee and of the payer.


***

Commission response

The Commission issued an explanatory press release, which welcomed the EP resolution:

European Commission welcomes the European Parliament’s adoption of two proposals in the area of payments (on e-money and cross-border payments) (24 April 2009; IP/09/637)



***

Final adoption

The new Regulation is now heading for final adoption by the Council and subsequent publication in the Official Journal of the European Union (OJEU).


Ralf Grahn

EU: Judgments in civil and commercial matters

This post is aimed at lawyers interested in the enforcement of European judgments.


Commission Regulation (EC) No 280/2009 of 6 April 2009 amending Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters has been published in the Official Journal of the European Union (OJEU) 7.4.2009 L 93/13.

As from tomorrow the lists in Annexes I to IV concerning these cross-border cases are being replaced by new consolidated versions. The contents of the Annexes at a glance:

Annex I Rules of jurisdiction referred to in Article 3(2) and Article 4(2)

Annex II on the courts or competent authorities to which the application referred to in Article 39 may be submitted

Annex III on the courts with which appeals referred to in Article 43(2) may be lodged

Annex IV on the appeals which may be lodged pursuant to Article 44



Ralf Grahn

EU Law: Defence equipment transfers

Is the European Union causing all the red tape, or could there be other culprits?


***

Defence equipment transfers

The internal market and the emergence of a European Defence Equipment Market (EDEM) is hampered by 27 different national licensing regimes, even between member states of the European Union.

One of the Commission’s cautious steps to improve the prospects for the EU defence industry and to promote a functioning internal market in defence equipment, was to single out intra-EU transfers for a proposed Directive.

In the words of the commission, the objective of the proposal was to reduce the obstacles to the circulation of defence-related goods and services (products) within the internal market, and to diminish the resulting distortions of competition, by simplifying and harmonizing licensing conditions and procedures. In view of the specific features of the defence market and the need to protect national security, the Commission did not propose to abolish licensing requirements but rather to replace them by a streamlined system of general or global licenses, to which individual licensing would remain the exception. Such system would provide guarantees as to the reliability of the recipient to respect restrictions prescribed by the member state of origin.



The proposed Directive on simplifying terms and conditions of transfers of defence-related products within the Community (Brussels, 5.12.2007 COM(2007) 765 final), is available here:

http://ec.europa.eu/enterprise/defence/defence_docs/COMM_2007_0765_F_EN.pdf


***

Quick overview


For a quick view of the Commission’s efforts to promote cross-border procurement of member states’ armed forces, there is a four page press release, Commission proposes cutting red tape in EU defence industry (MEMO/07/546, Brussels 5th December 2007):

http://ec.europa.eu/enterprise/defence/defence_docs/MEMO-07-546_EN.pdf

National red tape is said to cost EU companies and administrations € 433 million directly per year and € 2.73 billion indirectly, although not one of 11500 annual requests for intra-EU transfer licences has been formally denied since 2003.


***

Impact assessment

The proposed Directive on intra-EU transfers was accompanied by two Commission Staff Working Documents. The impact assessment summary SEC(2007) 1574 is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1594:EN:HTML


The longer impact assessment SEC(2007) 1593 is available here:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52007SC1593:EN:HTML


The impact assessment and summary lay out the reasons for the proposal and the chosen options.


***

European Parliament

At its first reading on 16 December 2008, the European Parliament approved the proposed Directive with amendments:

http://www.europarl.europa.eu/sides/getDoc.do;jsessionid=FE68FF66A91E1C708351395837549126.node1?pubRef=-//EP//TEXT+TA+P6-TA-2008-0603+0+DOC+XML+V0//EN


***

Future posts will look at the contents of the proposed Directive on defence-related products.


Ralf Grahn

EU: Monetary policy X Cross-border financial supervision

The European Community includes an internal market characterized by the abolition, as between member states, of obstacles to the free movement of goods, persons, services and capital. In addition to Article 3(1)(c) of the Treaty establishing the European Community (TEC), the free movement of capital and payments in the European Community is confirmed and detailed in Articles 56 to 60 TEC.

The member states have created a single area for capital movements, but retained 27 jurisdictions supervising financial institutions.

Having painted themselves into a corner, what have the EU (EC) member states done to make the paint dry a little faster?

***

When intergovernmental EU cooperation is mentioned, fairly many know that the member states have kept foreign, security and defence policy matters as their reserved turf, but economic and monetary union (EMU) is another area where the European Parliament is resolutely sidelined.

This has not prevented the EP from trying to form its opinions and to stimulate debate. One example is the report by Kern Alexander , John Eatwell, Avinash Persaud and Robert Reoch: Financial Supervision and Crisis Management in the EU (Report to the European Parliament Committee on Economic and Monetary Affairs; published 2008):

http://www.europarl.europa.eu/activities/committees/studies/download.do?file=19191#search=%20Financial%20supervision%20

The report states that financial regulation and crisis management have not kept pace with the changes of the financial markets, and it calls for a new approach to the content and structure of
regulation, supervision and crisis management.


***

Since Article 105(5) TEC puts the ‘competent’, i.e. national authorities in charge of prudential supervision of (global and European) credit institutions and the stability of the financial system, the gap between the real world and the treaty has to be filled somehow.

As always, intergovernmental or interinstitutional voluntary cooperation and various soft law approaches are words to look out for in a context like this.

***

The Council (ECOFIN) agreed on so called Financial Markets Stability Roadmaps 9 October 2007 and 4 December 2007. They were updated 15 May 2008 (Council document 9056/1/08 REV 1):

http://www.eu2008.si/en/News_and_Documents/download_docs/May/0514_Svet_ECOFIN/030financial_stability_roadmaps.pdf

The roadmaps concerned: Enhancing the Lamfalussy framework, incl. financial supervision; Financial Stability Arrangements; Actions taken in response to the financial turmoil.


***

One example of an approach based on voluntary cooperation and soft law is the upgraded Memorandum of Understanding on Co-operation between the Financial Supervisory Authorities, Central Banks and Finance Ministries of the European Union on Cross-Border Financial Stability (published 20 June 2008):

http://www.ecb.europa.eu/pub/pdf/other/mou-financialstability2008en.pdf

The memorandum updates a 2005 MoU, and it is based on the realisation that financial integration increases the scope for cross-border and cross-sector contagion and thus the likelihood of a systemic crisis affecting more than one member state. Financial stability is, therefore, a common concern for all member states and the EU as a whole, and must be safeguarded on the basis of close cooperation among all parties.

The objective of the MoU is ensure cooperation in financial crises between financial supervisory authorities, central banks and finance ministries through appropriate procedures for sharing of information and assessments, in order to facilitate the pursuance of their respective policy functions and to preserve stability of the financial system of individual member states and of the EU as a whole.

Sharing of information, views and assessments are typical catchwords of such non-binding cooperation, as is the emphasis on ‘their respective … functions’. The memorandum does not create any legal commitment for any of the parties to intervene in favour of anyone affected by a financial crisis. Parties with common concerns are invited to conclude more detailed voluntary specific cooperation agreements.

The parties commit themselves to open, full, constructive and timely cooperation; and to prepare and search for jointly acceptable solutions (read: consensus), and they commit themselves to common principles in the management of systemic or serious crises. A coordinating role is foreseen for the home country supervisory authority.

***

The European Parliament debated improved financial supervision in the context of the Lamfalussy follow-up on 9 October 2008:

http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P6-TA-2008-0476

The resolution contains a wealth of references of value to the serious student.

***

Declaration on a concerted action plan of the euro area countries 12 October 2008 (Council document 14239/08) contained the results of the first Eurozone summit:

http://register.consilium.europa.eu/pdf/en/08/st14/st14239.en08.pdf

Financial supervision was mentioned in point 10, page 5:

Given the exceptional market circumstances, we urge national supervisors, in accordance with
the spirit of Basel 2 rules, to implement prudential rules also with a view to stabilising the financial system.

***

The latest authoritative guidelines that we have are the Presidency Conclusions of the European Council 15 to 16 October 2008 (Council document 14368/08):

http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/ec/103441.pdf

The principles adopted at the first Eurozone summit were given broad support by the October European Council.

A financial crisis cell will be established, meaning an informal warning, information-exchange and evaluation mechanism (point 6, page 3).

The European Council stresses the need to strengthen the supervision of the European financial sector, particularly cross-border groups, and to implement urgently the Ecofin Council's roadmap, with a view to improving the coordination of supervision at European level. In this context the European Council welcomes the setting up of a high-level group by the Commission. To begin with, the European Council invites national supervisors to meet at least once a month, to exchange information.

The European Council supports the speeding up of work to strengthen the rules on stability, including work on the Capital Requirements Directive (point 8, page 3).


***

EurActiv has followed financial supervision matters closely. Here are two news items:

EurActiv 10 October 2008: Parliament calls for overhaul of financial supervision

EurActiv 15 October 2008: EU leaders set for scramble on financial supervision

Perhaps the best way to conclude this overview of cross-border financial supervision is contained in the headline of the following news report:

EurActiv 17 October 2008: Summit: Minor progress on banking supervision

http://www.euractiv.com/en/financial-services/summit-minor-progress-banking-supervision/article-176456

Integrated supervision for integrated financial markets is still a long way off.


Ralf Grahn

Citizens and EU law - The real world

There is an emerging body of EU law for Europeans who travel, move, live, love, work, parent, retire or divorce across borders within the European Union. There are still lacunae, but the application, the realities on the ground, are the main focus of the report Alain Lamassoure MEP has prepared for president Nicolas Sarkozy.

‘Le citoyen et l’application du droit communautaire – Rapport au Président de la République’ (8 June 2008; 188 pages) looks at the problems of EU citizens face outside their country of origin, but inside the European Union. Cross-border families are one example.

The report is posted on a number of web pages. One of them is Toute l’Europe:

http://www.touteleurope.fr/fileadmin/CIEV2/entretiens/Rapport_definitif_8_juin_2008.pdf

The perspective is French: EU citizens living in France and French citizens in other EU countries. But Lamassoure uses materials of general applicability, and he suggests that France uses its Council presidency to propose concrete measures to ameliorate the situation of cross-border persons and to inspire other EU member states to take a closer look at their laws and practices.

Taking into account how much corporations are at the centre of textbooks on European Community law, Lamassoure’s report is a valuable source for students and researchers of European law and politics, as well as migrant EU citizens.

Lamassoure looks at the human side of European integration.


Ralf Grahn

EU TFEU: Cross-border crime

The EU Treaty of Lisbon clarifies the powers to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension. Qualified majority voting in the Council and co-legislation by the European Parliament make for more effective, democratic and transparent law-making.

There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.

Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.


***

Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article 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 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

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

Chapter 4 ‘Judicial cooperation in criminal matters’

Article 83
(ex Article 31 TEU)

1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.

Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure 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, which shall terminate the suspension of the ordinary legislative procedure.

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 directive 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.

***

In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):

“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”

It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.

One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.

***

Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):

Article 31 TEU

1. Common action on judicial cooperation in criminal matters shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

2. The Council shall encourage cooperation through Eurojust by:

(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;

(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;

(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.

***

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

The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):

Article III-172 Draft Constitution

1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.

2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.

Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.

***

The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):

Article III-271 Constitution

1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.

These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.

On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.

2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.

3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it shall be suspended. After discussion, the European
Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396 where it is applicable, or

(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.

4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law 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 Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

***

The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.

The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.

The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.

The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).

Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.

***

The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.

The Foreign and Commonwealth Office (FCO) presents a short version of the 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 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:

“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”

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) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:

“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”

The Research Paper 07/86 is available at:

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

***

In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):

“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”

“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”

“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”

The JHA analysis and other Statewatch analyses are available through:

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

***

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, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.


The report is accessible at:

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



Ralf Grahn

EU TFEU: Judicial cooperation in criminal matters

Mutual recognition of judgments, approximation (harmonisation) of laws and minimum procedural rules in cross-border criminal cases form the nucleus of EU judicial cooperation in criminal matters according to the Treaty of Lisbon.

***

Article 82 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning of a new Chapter 4 on judicial cooperation in criminal matters. The Article 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 104–105), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

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

Chapter 4 ‘Judicial cooperation in criminal matters’

Article 82 TFEU
(ex Article 31 TEU)

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.

The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:

(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) support the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure 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, which shall terminate the suspension of the ordinary legislative procedure.

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 directive 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.

***

In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):

“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”

It then went on to present the agreed chapter heading and wording (as above, save for the referrals later renumbered) of Article 69a TFEU (ToL), which became Article 82 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.

***

Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):

Article 31 TEU

1. Common action on judicial cooperation in criminal matters shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

2. The Council shall encourage cooperation through Eurojust by:

(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;

(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;

(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.

***

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

The European Convention proposed the following Article III-171 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):

Section 4
Judicial cooperation in criminal matters

Article III-171 Draft Constitution

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-172.

European laws or framework laws shall establish measures to:

(a) establish rules and procedures to ensure the recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) encourage the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. In order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules concerning:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.

Adoption of such minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure.

***

The IGC 2004 took over, with modifications, the draft text in the first and second paragraph of Article III-270 of the Treaty establishing a Constitution for Europe, but the IGC 2004 added a third and fourth paragraph (OJ 16.12.2004 C 310/118–119):

Section 4
Judicial cooperation in criminal matters

Article III-270 Constitution

1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-271.

European laws or framework laws shall establish measures to:

(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;

(b) prevent and settle conflicts of jurisdiction between Member States;

(c) support the training of the judiciary and judicial staff;

(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross‑border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.

3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or

(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.

4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law 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 Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.

***

The current Article 31 TEU is part of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, which is based on intergovernmental cooperation and constitutes the so called third pillar.

The objective of the European Convention was to form a more unified area of freedom, security and justice, by abolishing the pillar structure and moving the remaining third pillar matters under the same heading with those justice and home affairs questions, where Community or first pillar procedures applied already.

The draft Constitution re-wrote the main provision on judicial cooperation in criminal matters by clearly endorsing the principle of mutual recognition and the practice of approximation (harmonisation) of laws.

When the governments met in the IGC 2004, they accepted the general approach of the European Convention, but added certain limitations. In the second paragraph, minimum rules were to be established only ‘to the extent necessary’ and these rules were to ‘take into account the differences between the legal traditions and systems of the Member States’.

The new third paragraph instituted the so called emergency brake for each member state which considered that a draft framework law (directive) would affect fundamental aspects of its criminal justice system, but on the other hand, if the proposed act came to nothing, a group of member states could establish enhanced cooperation on the basis of the proposed draft law, as stated in paragraph 4.

The Treaty of Lisbon used its own terminology, and it streamlined paragraphs 3 and 4 on the emergency brake and enhanced cooperation, but essentially it adopted the text agreed by the IGC 2004.

***

In addition to opting out, watering down proposals made by the European Convention was described as a victory for the United Kingdom government. The Foreign and Commonwealth Office (FCO) offered the following summary in the ‘White Paper on the Treaty establishing a Constitution for Europe’ (Command Paper 6309, September 2004; page 11):

“The UK’s negotiating success at the IGC

At the European Council on 18 June, amendments to the Convention’s draft EU Constitution were set out in two documents, CIG 81/04 and CIG 85/04.These two documents superseded all other proposals for amendments made by either Presidency during the IGC. In total, these documents cover amendments on 80 different areas in the Treaty.

The UK advocated the amendments in 39 of the 80 areas covered (see chart at Annex 2). Examples range from criminal law, tax and social security to the provisions on animal welfare and the solidarity clause. These amendments were either initiated by the UK, initiated jointly with other Member States, or pushed by other Member States and supported by the UK.

The UK remained neutral on 38 areas where others had pushed for amendments which were of no substantive concern to the UK.

In the remaining three areas, the UK originally opposed the amendments, but we secured changes at the European Council which made them acceptable (e.g. provisions for the Union’s accession to the European Convention on Human Rights).

In short, nearly half the final changes to the Treaty were secured at UK instigation: a measure of the influence the UK had on its final form.”

Against this background followed the description of the negotiations on justice and home affairs from the British government’s point of view (page 31):

“Justice and Home Affairs

67. The Maastricht Treaty (1992) introduced co-operation on Justice and Home Affairs issues as the third pillar in the EU’s pillar structure with its own separate intergovernmental arrangements. The Constitution introduces qualified majority voting as the norm for JHA issues – a welcome consequence of abolishing the pillar structure (as the Government made clear at paragraph 82 of the September 2003 White Paper).

68. This means that no single Member State will be able to block action on issues like cross-border crime, drug trafficking, illegal immigration and terrorism. These are international issues where it is in our interest to work within the EU. But because of the differences in Member States’ legal traditions and systems, the Government, in its September 2003 White Paper, said that QMV would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned (paragraph 83). This commitment has been delivered upon. The Convention’s proposals for blanket QMV in criminal law were replaced by an emergency brake mechanism. This means that a Member State which cannot accept a criminal procedural law proposal can ‘pull the brake’. This stops the discussion in the Council and automatically refers it to the European Council where decisions are made by consensus. If it is still impossible to agree, then the enhanced co-operation provisions can be applied, without all the preliminary procedures needing to be applied. This means that if a third of Member States want to, they can go ahead by themselves. This enhanced flexibility is one of the benefits of the new Treaty.”

The Command Paper 6309 is available at:

http://www.fco.gov.uk/resources/en/pdf/pdf15/fco_beu_euct_whitepaper_sept04

***

About three years later, the UK government reported in the same vein on the IGC 2007 in ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007’ (Command Paper 7174, published 23 July 2007; page 10):

“The Mandate agreed at the June European Council stipulates that, as part of the IGC process, the UK's right not to participate in new measures in the JHA area can be made to apply even where those measures build upon earlier agreements.

The new Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a Member State's legal system. This is the so-called ‘emergency brake’. If all the members of the European Council do not unanimously agree the proposal will fall, or will go ahead only in the Member States that want it – and then only if at least one third choose to go forward in that way. This additional safeguard will be available even where the UK had previously chosen to opt-in to a proposal in these areas.”

The FCO view is available at:

http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf

***

Having looked at some historic positions concerning the “emergency brake”, we move on to a few more British views on matters relating to EU judicial cooperation in criminal matters, now with the Treaty of Lisbon in hand.

The FCO presents a short version of the 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 82 TFEU, formerly Article 69a TFEU (ToL):

“Draws on Article 31(1) TEU. Mutual recognition, as well as approximation of laws, is to be the basis for criminal judicial co-operation. Lists the areas in which minimum rules on criminal procedural law may be adopted. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to extend the scope of minimum rules that may be adopted. The adoption of minimum rules on criminal procedure is also subject to a new emergency brake procedure.”

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; pages 38–39) commented on criminal procedures:

“On criminal procedures, Article 69A goes much further than the existing Article 31(1)(c) TEU, which merely includes in the list of common actions “ensuring compatibility in rules applicable in Member States as may be necessary to improve [judicial] cooperation”. --- This is a new and potentially controversial provision. It would permit the EU to establish minimum rules relating specifically to mutual admissibility of evidence, the rights of individuals in criminal procedure, and the rights of victims of crime.”


The Research Paper 07/86, with the discussion of judicial cooperation in criminal matters continuing to page 48, is available at:

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

Steve Peers commented in the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 69a TFEU (ToL), Article 82 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked (page 15):

“These changes clarify the prospect of applying an ‘emergency brake’ and the possibility of a
group of Member States applying a ‘flexibility’ procedure afterward. This is distinct from the
UK, Irish and Danish power to opt out of proposals at the outset. Note that the ‘emergency
brake’ does not apply to paragraph 1.

The voting procedure otherwise is QMV and co-decision, a change from the present unanimity
and consultation.”

The JHA analysis and other Statewatch analyses are available through:

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

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, with the pages 139 to 143 dedicated to mutual recognition, harmonisation and criminal procedure. Here are the conclusions of the Committee:

“6.152. The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.”

---

“6.160. The extent of the Union’s existing competence in the area of criminal procedure under the existing Article 31 with its nonexhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims’ rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament’s consent.

6.161. Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters “having a crossborder dimension”. The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.”

The report is accessible at:

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



Ralf Grahn

EU TFEU: Judicial cooperation in civil matters

For citizens and businesses with cross-border contacts, EU judicial cooperation in civil matters is potentially important. The Treaty of Lisbon re-writes, clarifies and expands the current treaty provisions, but for families the attainment of cross-border rules is subject to national vetoes more limiting than even today.


***

Article 81 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning and the end of a new Chapter 3 on judicial cooperation in civil matters. The Article 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 102–103), with the location of the provision added from the table of equivalences (page 460 to 463):

Part Three ‘Policies and internal actions of the Union’

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

Chapter 3 ‘Judicial cooperation in civil matters’

Article 81 TFEU
(ex Article 65 TEC)

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) effective access to justice;

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

***

In Article 2, point 66, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated:

66) Article 65 shall be replaced by the following Chapter 3 and Article 65.

Then followed the wording (as above) of the new Article 65 TFEU (ToL), which became Article 81 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/61–62, 209).

***


Article 65 of the current Treaty establishing the European Community (TEC) is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/68–69):

Article 65 TEC

Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include:

(a) improving and simplifying:

— the system for cross-border service of judicial and extrajudicial documents,

— cooperation in the taking of evidence,

— the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;

(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;

(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

***

The European Convention proposed the following expanded Article III-170 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):

SECTION 3
Judicial cooperation in civil matters

Article III-170 Draft Constitution

1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. To this end, laws or framework laws shall lay down measures aimed inter alia at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) a high level of access to justice;

(f) the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be laid down in a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.

The Council of Ministers, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council of Ministers shall act unanimously after consulting the European Parliament.

***

The IGC 2004 took over the draft text in Article III-269 of the Treaty establishing a Constitution for Europe with a few modifications (OJ 16.12.2004 C 310/117):

SECTION 3
JUDICIAL COOPERATION IN CIVIL MATTERS

Article III-269 Constitution

1. The Union shall develop judicial cooperation in civil matters having cross‑border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

2. For the purposes of paragraph 1, European laws or framework laws shall establish measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;

(b) the cross-border service of judicial and extrajudicial documents;

(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;

(d) cooperation in the taking of evidence;

(e) effective access to justice;

(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;

(g) the development of alternative methods of dispute settlement;

(h) support for the training of the judiciary and judicial staff.

3. Notwithstanding paragraph 2, a European law or framework law of the Council shall establish measures concerning family law with cross-border implications. The Council shall act unanimously after consulting the European Parliament.

The Council, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

***

Although the current Article 65 TEC includes much of the subject matter, the European Convention re-wrote, clarified and expanded the provision in Article III-170 of the draft Constitution. The ordinary legislative procedure became the main rule, instead of the complex procedures referred to in Article 67 TEC (although these lost their meaning after the transitional period and later after the adoption of co-decision, except for aspects relating to family law).

The Constitutional Treaty was, in essence, the same as the draft Constitution, but with some modifications. In addition to ‘stylistic’ changes, the IGC added the reference ‘particularly when necessary for the proper functioning of the internal market’ to paragraph 2, and ‘a high level of access to justice’ became ‘effective access to justice’ in point (e) of that paragraph.

Article 65 TFEU (ToL), renumbered Article 81 TFEU, takes over the text of the Constitutional Treaty with general editorial changes, except for one essential addition.

This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(k), page 8) which stated, with the IGC 2004 as its basis:

“In the Chapter on judicial cooperation in civil matters, paragraph 3 of the Article on such cooperation, as agreed in the 2004 IGC, will be modified so as to give a role to national parliaments in the “passerelle” clause on family law (see point 2(b) of Annex 2).”

Annex 2, point 2(b), page 15, gave the proposed wording of the new third subparagraph of paragraph 3, only stylistically changed during the IGC 2007.

In other words, family law will continue to be an area, where unanimity in the Council is required, and moving parts of decision-making (“passerelle clause”) in family law matters with cross-border implications to the ordinary legislative procedure can be vetoed by any member state government and national parliament.

From the viewpoint of cross-border families, this may look as the camel and the eye of the needle.

***

To serve as introductory reading, both political and legal, let us take a look at a few British views on matters relating to cross-border families and other questions relating to EU judicial cooperation in civil matters.

In ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007 (Command Paper 7174), the UK Foreign and Commonwealth Office had this to say (published 23 July 2008; page 10):

“The Reform Treaty retains the requirement for unanimity (i.e. a UK veto) for measures concerning family law with cross border implications. In addition, it will include a provision enabling a single national Parliament to veto any move to use the ‘minipasserelle’, which would allow for decision making on aspects of family law with crossborder implications to be changed from unanimity to co-decision and QMV.”

The FCO view is available at:

http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf

The brief version of the Lisbon Treaty amendments was presented by the FCO 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 81 TFEU, Article 65 TFEU (ToL):

“Draws on Articles 65 and 67(5) TEC. Adds new references to mutual recognition of judgments and decisions, access to justice, alternative dispute settlement methods, and support for judicial training. Existing passerelle to move aspects of family law to co-decision, now subject to a veto by any national parliament.”

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; page 37) commented upon the UK position and family law (page 38):

“The UK has the option to opt in to measures under this Article. With regard to decisions on family law, the TFEU retains the requirement to act by unanimity under the OLP, but expands on the 2004 text with a ‘red card’ mechanism by which proposals will be notified to national parliaments, which will be able to make known their opposition within six months and thereby prevent its adoption.”

The Research Paper 07/86 is available at:

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

Steve Peers has a lengthy comment on the various aspects of the Lisbon Treaty provision in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 65 TFEU (ToL), Article 81 TFEU. Here, just a short quote on the possibility to move to qualified majority voting and co-decision in family law matters (page 12):

“This actually gives more power to national parliaments over this issue than they have at present.”

The JHA analysis and other Statewatch analyses are available through:

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

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 ‘Civil justice’ on pages 137 to 139. The conclusions of the Committee are on page 139:

“6.140. The power under the current Article 65 to adopt measures of judicial cooperation in civil matters is itself potentially broad, since the list of areas of potential action given is non-exclusive. Article 81 contains a more extensive list of areas of potential action. However, these in practice are areas in which cooperation has already been undertaken under the current Article, and the list given is exhaustive.

6.141. In lieu of the present absolute requirement that measures taken be necessary for the proper functioning of the internal market, Article 81 provides that measures may be taken “particularly when” so necessary. But, under both existing Article 65 and new Article 81, such measures are only permissible in civil measures “having crossborder implications”, itself a significant limitation. Both the existing and the new articles are capable of giving rise to differences of view regarding the scope of their application in particular situations, and we doubt whether this is much affected by the changes in Article 81. This is an area where the new powers of national parliaments to police the subsidiarity principle (see Chapter 11) may be particularly important. We consider the requirement that there should be “cross-border implications” or “a cross-border dimension” further below.”

The report is accessible at:

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



Ralf Grahn