The European Council takes its decisions by consensus according to the general rule (Article 15(4) TEU) and facilitating cohesion and consensus is one of the President’s task (Article 15(5)(c).
Let us see where else the Lisbon Treaty employs the term consensus in conjunction with the European Council.
In Article 82 TFEU, when the European Council has become employed by the ‘emergency brake’ concerning mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Council after discussion, and in case of a consensus, within four months of the suspension, refers the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
The same procedure applies with regard to proposed directives establishing minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension (Article 83 TFEU).
Likewise, if a group of at least nine member states wants to establish enhanced cooperation in order to establish a European Public Prosecutor's Office from Eurojust, with the task to combat crimes affecting the financial interests of the Union (Article 86 TFEU).
The same procedure applies to operational cooperation concerning police authorities (Article 87 TFEU).
With regard to qualified majorities and blocking minorities, Protocol (No 9) on the decision of the Council relating to the implementation of Article 16(4) of the Treaty of European Union and Article 238(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other, any amending or modifying act would be preceded by a preliminary deliberation by the European Council based on consensus.
Declaration (23).on the second paragraph of Article 48 of the Treaty on the Functioning of the European Union recalls that the European Council acts by consensus when it deals with a referral, where a member state has declared that a draft legislative act would affect important aspects of its social security system.
***
There seem to be two different situations mainly: The European Council sorts the situation out by reaching consensus needed for a Council decision. The referral is only temporary, and the willing press ahead with enhanced cooperation.
Next, we look at the terms unanimity and by unanimous decision.
Ralf Grahn
Showing posts with label emergency brake. Show all posts
Showing posts with label emergency brake. Show all posts
Saturday, 21 March 2009
Wednesday, 7 May 2008
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
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
Thursday, 3 April 2008
EU TFEU: Social security for migrant workers
Free movement for workers is one of the most important freedoms for ordinary citizens of the European Union, but if they lose their earned benefits this freedom becomes an empty shell. Only by adding (or more precisely, aggregating) these benefits can migrant workers really grab the opportunities offered by the common job market offered by the European Economic Area (EEA).
Social security benefits have to be calculated and paid across national borders to millions of workers and self-employed persons.
The EU Treaty of Lisbon lays the foundations for swifter and more comprehensive legislation on migrant workers’ rights by abolishing the requirement for unanimous Council acts, but qualified majority voting (QMV) is dampened by the installation of a so called emergency brake, which offers an obstructing member state the opportunity to postpone and ultimately scrap a proposal.
***
In the Treaty of Lisbon (ToL), under Free movement of workers, the intergovernmental conference (IGC 2007) made the following amendments to Article 42 of the Treaty establishing the European Community (TEC). See OJ 17.12.2007 C 306/54:
51) Article 42 shall be amended as follows:
(a) in the first paragraph, the words ‘migrant workers and their dependants:’ shall be replaced by ‘employed and self-employed migrant workers and their dependants:’;
(b) the last paragraph shall be replaced by the following:
‘Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure 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 ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.’.
***
Luckily, the Council has at least seen to that there is a consolidation of the current treaties, the TEU and the TEC, the latest one in OJ 29.12.2006 C 321 E/58-59, where we find Article 42 TEC as it is today:
Article 42 TEC
The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
The Council shall act unanimously throughout the procedure referred to in Article 251.
***
Whilst looking forward to the belated consolidated versions of the Lisbon Treaty to be published by the Council in all the treaty languages 15 April 2008, we piece together the provision according to the instructions given.
The express amendments are straightforward, the horizontal amendments to be kept in mind (ordinary legislative procedure) and the new numbering inserted. Additionally, it is helpful to see the context of each Article.
We should end up with a provision looking like this:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 1 ‘Workers’
Article 42 TFEU (ToL), renumbered Article 48 TFEU
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure 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 ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
I then check my result against four of those who already have offered the public readable consolidated versions, namely the almost perfect consolidated Lisbon Treaties of the IIEA (Peadar ó Broin), the FCO (Anonymous), Statewatch (Steve Peers) and ‘Der Vertrag von Lissabon’ (in German; Klemens H. Fischer).
Naturally, most people need only an accurate, readable text. They are advised to turn to one of the consolidations directly.
Since there is a daily demand for consolidated versions, there is a steady stream of visitors to this blog as a result of web searches. Sadly, many seem to stumble upon earlier and (even) less complete posts.
Therefore, I take the opportunity to refer the interested readers to my latest post on existing consolidated language versions ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, and to the links presented in that post.
If kind readers bring other consolidations, official documents or secondary literature on the Lisbon Treaty to my attention, there may be cause for coming updates.
***
The objective of this blog is to offer the reader the tools to compare the current treaties Article by Article with the Lisbon Treaty, including the preceding steps, the draft Constitution and the Constitutional Treaty. (Depending on the situation, some suggestions for further reading may be offered about the politics and secondary legislation in question.)
***
Thus, our following stop is the European Convention and its draft Treaty establishing a Constitution for Europe. The proposed Article III-21 looked like this (OJ 18.7.2003 C 169/31):
Article III-21 Draft Constitution
In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by introducing a system to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
***
This is one instance where the IGC 2004 did not content itself with giving the work of the European Convention its blessing. Article III-136 of the Treaty establishing a Constitution for Europe introduced new elements (OJ 16.12.2004 C 310/60):
Article III-136 Constitution
1. In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by making arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the different countries;
(b) payment of benefits to persons resident in the territories of Member States.
2. Where a member of the Council considers that a draft European law or framework law referred to in paragraph 1 would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter 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 to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
You now have the materials at your disposal for your comparison of the different stages of the treaty reform process.
Here are a few comments on the similarities and differences to get you going:
The draft Constitution used clearer and more expressive terms for legislative acts, so ‘European laws or framework laws’ made their appearance here, too, instead of the less elegant ‘procedure referred to in Article 251’ standing for co-decision.
The beef of the European Conventions proposal was, however, dropping the text of Article 42(2) TEC with the required unanimity in the Council ‘throughout’. This paved the way for qualified majority voting (QMV) in the Council in order to better safeguard the interests of migrant workers.
In principle, adding ‘employed and self-employed’ to migrant workers and their dependants broadened the scope of the draft Constitution provision.
***
The IGC 2004 was more cautious in its approach. ‘Making arrangements’ can be seen as less ambitious than ‘introducing a system’ to secure migrant workers’ benefits, in the first paragraph. ‘Several’ or ‘different’ countries should not make any material difference.
But the real indication of some member states’ apprehension was the added second paragraph. The IGC 2004 introduced the so called emergency brake, which meant that any member state could refer a proposed legislative act to the European Council if it felt that it would ‘affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system’ or ‘the financial balance of that system’.
This would, in effect, remove a question referred from QMV to the unanimous decision making of the European Council, although such a question would plausibly have to ‘affect fundamental aspects’ of the social security system of the referring member state.
In four months, the European Council unanimously was to give a green light for the Council to go ahead or scrap the proposal (and request a new and neutered one).
***
The Lisbon Treaty retains the scope of both employed and self-employed (and their dependants) as well as the ordinary legislative procedure of the Constitution as the main procedural rule. But the IGC 2007 lowered the bar for referral compared to the Constitution by replacing ‘fundamental aspects’ by ‘important’ ones, making it less burdensome for an obstructing member state to argue its case for referral politically, although all it really would have taken and takes is the determination of a member state to issue a declaration.
***
One detail, of minor importance, is the the position of the word ‘shall’ in the sentences about acting in accordance with the ordinary legislative procedure. With no firm indications (point 2(c)) the consolidations (and I) have reached different conclusions along the way, but when the official unofficial consolidated versions appear (for illustrative purposes) we will follow their wording.
In the IIEA consolidation I have noticed a small, recurring omission. In essence, it is no problem, since the ordinary legislative procedure entails the participation of the European Parliament and the Council, but in some instances among the insidious horizontal amendments the words ‘the European Parliament and’ have not been inserted.
As I said earlier, as far as I have advanced, I have found the consolidated versions I have used to be highly reliable, ‘almost perfect’.
People may have different opinions about the blessings or dangers of the Lisbon Treaty, but these sources are dependable.
***
Just in case someone believes that the governments of the member states (IGC 2007) take matters concerning their coffers lightly, or that the European Council could escape the strictures of unanimity in case of referral (the emergency brake), two joint declarations have been attached to the Lisbon Treaty (Final Act, OJ 17.12.2007 C 306/256):
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
The Conference considers that in the event that a draft legislative act based on Article 69 A(2) would affect important aspects of the social security system of a Member State, including its scope, cost or financial structure, or would affect the financial balance of that system as set out in the second paragraph of Article 42, the interests of that Member State will be duly taken into account.
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
The Conference recalls that in that case, in accordance with Article 9 B(4) of the Treaty on European Union, the European Council acts by consensus.
***
A brief history of social security benefits is presented on the European Parliament’s web page ‘Social security for migrant workers’ (last update 22 February 2001):
http://www.europarl.europa.eu/factsheets/4_8_4_en.htm
The Commission’s Scadplus pages, with summaries of legislation, offer later information on the page ‘Social security schemes and free movement of persons: Basic Regulation’, last updated 25 June 2007:
http://europa.eu/scadplus/leg/en/cha/c10516.htm
Ralf Grahn
Social security benefits have to be calculated and paid across national borders to millions of workers and self-employed persons.
The EU Treaty of Lisbon lays the foundations for swifter and more comprehensive legislation on migrant workers’ rights by abolishing the requirement for unanimous Council acts, but qualified majority voting (QMV) is dampened by the installation of a so called emergency brake, which offers an obstructing member state the opportunity to postpone and ultimately scrap a proposal.
***
In the Treaty of Lisbon (ToL), under Free movement of workers, the intergovernmental conference (IGC 2007) made the following amendments to Article 42 of the Treaty establishing the European Community (TEC). See OJ 17.12.2007 C 306/54:
51) Article 42 shall be amended as follows:
(a) in the first paragraph, the words ‘migrant workers and their dependants:’ shall be replaced by ‘employed and self-employed migrant workers and their dependants:’;
(b) the last paragraph shall be replaced by the following:
‘Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure 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 ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.’.
***
Luckily, the Council has at least seen to that there is a consolidation of the current treaties, the TEU and the TEC, the latest one in OJ 29.12.2006 C 321 E/58-59, where we find Article 42 TEC as it is today:
Article 42 TEC
The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
The Council shall act unanimously throughout the procedure referred to in Article 251.
***
Whilst looking forward to the belated consolidated versions of the Lisbon Treaty to be published by the Council in all the treaty languages 15 April 2008, we piece together the provision according to the instructions given.
The express amendments are straightforward, the horizontal amendments to be kept in mind (ordinary legislative procedure) and the new numbering inserted. Additionally, it is helpful to see the context of each Article.
We should end up with a provision looking like this:
Part Three ‘Policies and internal actions of the Union’
Title III (renumbered Title IV) ‘Free movement of persons, services and capital’
Chapter 1 ‘Workers’
Article 42 TFEU (ToL), renumbered Article 48 TFEU
The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure 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 ordinary legislative procedure; or
(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
I then check my result against four of those who already have offered the public readable consolidated versions, namely the almost perfect consolidated Lisbon Treaties of the IIEA (Peadar ó Broin), the FCO (Anonymous), Statewatch (Steve Peers) and ‘Der Vertrag von Lissabon’ (in German; Klemens H. Fischer).
Naturally, most people need only an accurate, readable text. They are advised to turn to one of the consolidations directly.
Since there is a daily demand for consolidated versions, there is a steady stream of visitors to this blog as a result of web searches. Sadly, many seem to stumble upon earlier and (even) less complete posts.
Therefore, I take the opportunity to refer the interested readers to my latest post on existing consolidated language versions ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, and to the links presented in that post.
If kind readers bring other consolidations, official documents or secondary literature on the Lisbon Treaty to my attention, there may be cause for coming updates.
***
The objective of this blog is to offer the reader the tools to compare the current treaties Article by Article with the Lisbon Treaty, including the preceding steps, the draft Constitution and the Constitutional Treaty. (Depending on the situation, some suggestions for further reading may be offered about the politics and secondary legislation in question.)
***
Thus, our following stop is the European Convention and its draft Treaty establishing a Constitution for Europe. The proposed Article III-21 looked like this (OJ 18.7.2003 C 169/31):
Article III-21 Draft Constitution
In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by introducing a system to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;
(b) payment of benefits to persons resident in the territories of Member States.
***
This is one instance where the IGC 2004 did not content itself with giving the work of the European Convention its blessing. Article III-136 of the Treaty establishing a Constitution for Europe introduced new elements (OJ 16.12.2004 C 310/60):
Article III-136 Constitution
1. In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by making arrangements to secure for employed and self-employed migrant workers and their dependants:
(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the different countries;
(b) payment of benefits to persons resident in the territories of Member States.
2. Where a member of the Council considers that a draft European law or framework law referred to in paragraph 1 would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter 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 to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.
***
You now have the materials at your disposal for your comparison of the different stages of the treaty reform process.
Here are a few comments on the similarities and differences to get you going:
The draft Constitution used clearer and more expressive terms for legislative acts, so ‘European laws or framework laws’ made their appearance here, too, instead of the less elegant ‘procedure referred to in Article 251’ standing for co-decision.
The beef of the European Conventions proposal was, however, dropping the text of Article 42(2) TEC with the required unanimity in the Council ‘throughout’. This paved the way for qualified majority voting (QMV) in the Council in order to better safeguard the interests of migrant workers.
In principle, adding ‘employed and self-employed’ to migrant workers and their dependants broadened the scope of the draft Constitution provision.
***
The IGC 2004 was more cautious in its approach. ‘Making arrangements’ can be seen as less ambitious than ‘introducing a system’ to secure migrant workers’ benefits, in the first paragraph. ‘Several’ or ‘different’ countries should not make any material difference.
But the real indication of some member states’ apprehension was the added second paragraph. The IGC 2004 introduced the so called emergency brake, which meant that any member state could refer a proposed legislative act to the European Council if it felt that it would ‘affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system’ or ‘the financial balance of that system’.
This would, in effect, remove a question referred from QMV to the unanimous decision making of the European Council, although such a question would plausibly have to ‘affect fundamental aspects’ of the social security system of the referring member state.
In four months, the European Council unanimously was to give a green light for the Council to go ahead or scrap the proposal (and request a new and neutered one).
***
The Lisbon Treaty retains the scope of both employed and self-employed (and their dependants) as well as the ordinary legislative procedure of the Constitution as the main procedural rule. But the IGC 2007 lowered the bar for referral compared to the Constitution by replacing ‘fundamental aspects’ by ‘important’ ones, making it less burdensome for an obstructing member state to argue its case for referral politically, although all it really would have taken and takes is the determination of a member state to issue a declaration.
***
One detail, of minor importance, is the the position of the word ‘shall’ in the sentences about acting in accordance with the ordinary legislative procedure. With no firm indications (point 2(c)) the consolidations (and I) have reached different conclusions along the way, but when the official unofficial consolidated versions appear (for illustrative purposes) we will follow their wording.
In the IIEA consolidation I have noticed a small, recurring omission. In essence, it is no problem, since the ordinary legislative procedure entails the participation of the European Parliament and the Council, but in some instances among the insidious horizontal amendments the words ‘the European Parliament and’ have not been inserted.
As I said earlier, as far as I have advanced, I have found the consolidated versions I have used to be highly reliable, ‘almost perfect’.
People may have different opinions about the blessings or dangers of the Lisbon Treaty, but these sources are dependable.
***
Just in case someone believes that the governments of the member states (IGC 2007) take matters concerning their coffers lightly, or that the European Council could escape the strictures of unanimity in case of referral (the emergency brake), two joint declarations have been attached to the Lisbon Treaty (Final Act, OJ 17.12.2007 C 306/256):
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
The Conference considers that in the event that a draft legislative act based on Article 69 A(2) would affect important aspects of the social security system of a Member State, including its scope, cost or financial structure, or would affect the financial balance of that system as set out in the second paragraph of Article 42, the interests of that Member State will be duly taken into account.
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
The Conference recalls that in that case, in accordance with Article 9 B(4) of the Treaty on European Union, the European Council acts by consensus.
***
A brief history of social security benefits is presented on the European Parliament’s web page ‘Social security for migrant workers’ (last update 22 February 2001):
http://www.europarl.europa.eu/factsheets/4_8_4_en.htm
The Commission’s Scadplus pages, with summaries of legislation, offer later information on the page ‘Social security schemes and free movement of persons: Basic Regulation’, last updated 25 June 2007:
http://europa.eu/scadplus/leg/en/cha/c10516.htm
Ralf Grahn
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