Today three million Irish voters decide if they want Ireland to participate fully in an improved European Union, or if they want the EU to stagnate.
If they approve the Lisbon Treaty by answering Yes, the enlarged European Union will be able to work a little bit better to promote the values and interests of its 500 million citizens. Openness, democratic scrutiny and EU action will improve to a degree, helping the union to tackle the great challenges of our times in a more coherent manner.
If the Irish answer No, the 26 national parliaments and governments who have approved the Treaty of Lisbon will see their hopes for a modernised EU dashed.
The immediate choice is between the Treaty of Lisbon and the Treaty of Nice.
***
Implications
People are often afraid of change, but in this case the change option is the safer one:
We know the limits of the incremental amendments unanimously agreed between the EU member states. Under the Lisbon Treaty the policies would be made together, by all the member states and within the EU institutions (Council, European Parliament and Commission).
There are no choices free from implications.
We know less about how the pressures for change erupt, if the Treaty of Nice remains the foundation. In principle, a more effective and more democratic union could be envisioned, between a smaller number of member states.
Groups of member states might opt for enhanced cooperation under the old Treaty of Nice, which would establish new cores, still nominally within the EU framework.
Some member states might choose to initiate deeper cooperation outside the EU institutions, on an intergovernmental basis, with a lead role for a few big states, less parliamentary scrutiny and limited openness.
A reticent Ireland, but also positive smaller member states as well as EU citizens would be marginalised. Some big EU states would take the lead and the possible benefits would accrue unevenly across a European Union still in existence, but becoming more of an empty shell.
Do we have to study the implications of a No vote more closely?
I hope not, but if Ireland turns down the Lisbon Treaty, a period of soul-searching will begin, not only for Ireland, but for all the EU members. Then it will not be a question if the dog barks, but how it bites.
I have to admit that I am worried at the prospects.
Ralf Grahn
Showing posts with label enhanced cooperation. Show all posts
Showing posts with label enhanced cooperation. Show all posts
Friday, 2 October 2009
Thursday, 10 July 2008
Joschka Fischer’s EU avant-garde
Germany’s former foreign minister Joschka Fischer presented his view on EU reform in his Zeit Online column ‘Vive l’Avant-Garde!’ (30 June 2008):
http://www.zeit.de/online/2008/27/joschka-fischer-europa
The surrounding world changes at Formula 1 speed, but the Europeans have decided on a snail’s pace through a compromise between Euroskeptics and pro-Europeans.
According to Fischer, the parallel progress of enlargement and deepening has worked only for enlargement. Europe will lose power to decide on its own fate in the world.
The pro-Europeans have to end the compromise with the Euroskeptics, regardless of if a new Irish referendum saves the Lisbon Treaty or not.
The only possibility is a European avant-garde, a group of EU countries willing and able to advance. The willing and able participate, but the others shall not block progress anymore.
The Lisbon Treaty would provide both civilian enhanced cooperation and military permanent structured cooperation, but if the Treaty of Lisbon fails, the pro-European governments and states need to establish an avant-garde group outside the treaties.
The negative consequence of this would be that the community institutions would not develop for a long time, for example in the foreign policy field.
Even if European unity is an important value, it cannot be upheld if the price is permanent immobility or even backward steps. In the middle term the Nice Treaty status quo is a bigger threat to European unity than an avant-garde group.
If the best solution is unavailable, you have to grasp the second best option. The avant-garde group should take on the areas of energy policy, economic and financial policy, foreign and security policy, as well as social policy.
New institutions cannot be created in this way, but the participating countries can better determine their positions with regard to the outside world and, like Schengen, create new structures for integration beyond the treaties.
***
It worth noticing how silent the EU leaders and the EU institutions are on the hard choices facing Europe. Only free citizens seem to be able to contribute to the discussion with new facts and proposals.
Fischer’s analysis of Europe’s diminishing role in the world is compelling, as is his prescription that something has to be done to break the deadlock, with or without the Lisbon Treaty.
At least three of Fischer’s assumptions require special attention and deeper discussion:
1) The vast policy areas proposed by Fischer require effective action, but without decision-making rules to support decisive action, even a smaller group would become bogged down by the unanimity rule inherent to intergovernmental cooperation.
2) The relations between the core group policies and the regular Nice or Lisbon institutions’ decisions require careful thought. How would it play out? We would, for instance, have situations where a core group has a common position, but the EU does not.
3) Intergovernmental avant-garde groups outside the treaties or based on the Lisbon Treaty would do nothing to enhance the democratic legitimacy and accountability of their actions. Only democratic foundations can ultimately legitimise deeper integration, even if the commendable aim is to enhance the security and prosperity of EU citizens.
Should the integrationist countries realise that they need more than avant-garde groups? Should they finally accept that they need both effective institutions and democratic foundations, if they want to build a functioning Europe?
Ralf Grahn
http://www.zeit.de/online/2008/27/joschka-fischer-europa
The surrounding world changes at Formula 1 speed, but the Europeans have decided on a snail’s pace through a compromise between Euroskeptics and pro-Europeans.
According to Fischer, the parallel progress of enlargement and deepening has worked only for enlargement. Europe will lose power to decide on its own fate in the world.
The pro-Europeans have to end the compromise with the Euroskeptics, regardless of if a new Irish referendum saves the Lisbon Treaty or not.
The only possibility is a European avant-garde, a group of EU countries willing and able to advance. The willing and able participate, but the others shall not block progress anymore.
The Lisbon Treaty would provide both civilian enhanced cooperation and military permanent structured cooperation, but if the Treaty of Lisbon fails, the pro-European governments and states need to establish an avant-garde group outside the treaties.
The negative consequence of this would be that the community institutions would not develop for a long time, for example in the foreign policy field.
Even if European unity is an important value, it cannot be upheld if the price is permanent immobility or even backward steps. In the middle term the Nice Treaty status quo is a bigger threat to European unity than an avant-garde group.
If the best solution is unavailable, you have to grasp the second best option. The avant-garde group should take on the areas of energy policy, economic and financial policy, foreign and security policy, as well as social policy.
New institutions cannot be created in this way, but the participating countries can better determine their positions with regard to the outside world and, like Schengen, create new structures for integration beyond the treaties.
***
It worth noticing how silent the EU leaders and the EU institutions are on the hard choices facing Europe. Only free citizens seem to be able to contribute to the discussion with new facts and proposals.
Fischer’s analysis of Europe’s diminishing role in the world is compelling, as is his prescription that something has to be done to break the deadlock, with or without the Lisbon Treaty.
At least three of Fischer’s assumptions require special attention and deeper discussion:
1) The vast policy areas proposed by Fischer require effective action, but without decision-making rules to support decisive action, even a smaller group would become bogged down by the unanimity rule inherent to intergovernmental cooperation.
2) The relations between the core group policies and the regular Nice or Lisbon institutions’ decisions require careful thought. How would it play out? We would, for instance, have situations where a core group has a common position, but the EU does not.
3) Intergovernmental avant-garde groups outside the treaties or based on the Lisbon Treaty would do nothing to enhance the democratic legitimacy and accountability of their actions. Only democratic foundations can ultimately legitimise deeper integration, even if the commendable aim is to enhance the security and prosperity of EU citizens.
Should the integrationist countries realise that they need more than avant-garde groups? Should they finally accept that they need both effective institutions and democratic foundations, if they want to build a functioning Europe?
Ralf Grahn
Sunday, 11 May 2008
EU TFEU: Police cooperation
In an era of cross-border crime, effective police cooperation is needed between the member states of the European Union. The Treaty of Lisbon applies qualified majority voting in the Council and the ordinary legislative procedure (co-decision) some measures contributing to the fight against crime.
Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.
***
Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 87 TFEU
(ex Article 30 TEU)
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).
Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Section 5
Police cooperation
Article III-176 Draft Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 adopted the text of the European Convention without substantial change.
This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):
Section 5
Police cooperation
Article III-275 Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”
***
The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.
According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.
If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.
***
United Kingdom
We turn to additional comments and further reading on EU police cooperation. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69f TFEU (ToL), Article 87 TFEU (page 20):
“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”
“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).
‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border cooperation.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).
The Finnish ratification bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.
***
Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 87 TFEU
(ex Article 30 TEU)
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft measures concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).
Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Section 5
Police cooperation
Article III-176 Draft Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 adopted the text of the European Convention without substantial change.
This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):
Section 5
Police cooperation
Article III-275 Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”
***
The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.
According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.
If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.
***
United Kingdom
We turn to additional comments and further reading on EU police cooperation. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69f TFEU (ToL), Article 87 TFEU (page 20):
“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”
“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).
‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border cooperation.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).
The Finnish ratification bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Saturday, 10 May 2008
EU TFEU: European public prosecutor
Considering the criticism levelled at the European Commission and the European Union in general for mismanagement of EU funds by authorities of the member states, it should come as no surprise that the Commission would like to see outlays for inexistent olive groves and unbuilt roads recovered and the perpetrators diligently pursued.
The Treaty of Lisbon fails to bring the new provision on the European public prosecutor’s office under qualified majority voting and the ordinary legislative procedure, but it enables a group of nine or more member states to establish enhanced cooperation.
***
Europe Day brought EU citizens one valuable, although belated, gift: Consolidated versions of the Treaty on European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU) were published in the Official Journal of the European Union, which makes them feel somewhat more official than the Council’s consolidated version made available 16 April 2008.
From now on we are going to use OJ 9.5.2008 C 115 as our reference.
We look forward to the arrival of these consolidated versions of the Treaty of Lisbon in book form to our distant shores.
***
Article 86 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for the eventual establishment of a European public prosecutor. The Article is found in OJ 9.5.2008 C 115/82–83. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 86 TFEU
1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation 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.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
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: …”
The IGC 2007 then presented the wording of Article 69e TFEU (ToL) otherwise as above, but the clarifying words ‘in the Council’ were later added to the second subparagraph of the first paragraph (OJ 17.12.2007 C 306/65–66). In the consolidated version Article 69e was to become Article 86 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2).Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”
***
The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed.
***
The possible European public prosecutor is a new office, so there is no directly corresponding provision in the current treaties.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a European public prosecutor’s office with a wide mandate: to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union. But, due to resistance from some members (or, in fact, member states), the proposed new office came at the price of unanimity in the Council.
Here is Article III-175 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Article III-175 Draft Constitution
1. In order to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union, a European law of the Council of Ministers may establish a European Public Prosecutor's Office from Eurojust. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
***
The IGC 2004 narrowed the primary scope of the European public prosecutor’s office to crimes affecting the financial interests of the EU, although a new fourth paragraph opened up the possibility to extend the powers of the office, at the same time or later.
This is the text of Article III-274 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/121):
Article III-274 Constitution
1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
The provision on the European public prosecutor’s office is one more example where the member states have been unable to reach an unanimous agreement to move to qualified majority voting (QMV) in the Council and the ordinary legislative procedure (co-decision), with a fully developed role for the European Parliament.
In the face of long-standing opposition, no unanimous decision would have materialised in the Council in a foreseeable future.
On the other hand, certain member states feel strongly that the fight against serious cross-border crime, or at least crimes affecting the financial interests of the EU, should be stepped up by the means of more effective action.
This Gordian knot was cut by the IGC 2007 Mandate and the resulting Article 86 TFEU, by enabling a group of at least nine member states the option to forge ahead with enhanced cooperation. The worst curses of unanimity can be avoided, when unwilling member states are unable to prevent the progress of others, but are spared the discomfort of being dragged into arrangements they dislike.
***
The discussion date back to at least the European Convention, but here we are satisfied with a small sample of comments and views post Lisbon.
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69e TFEU (ToL), Article 86 TFEU (page 19):
“This is a new provision as compared to the current Treaties. The additions to this Article in the draft Reform Treaty (as compared to the Constitutional Treaty) provide for possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 86 TFEU, Article 69e TFEU (ToL) in the original Lisbon Treaty:
“New. Enables the Council, by unanimity and with EP consent, to establish a European Public Prosecutor’s Office to investigate and prosecute crimes affecting the EU’s financial interests. A passerelle enables the European Council, by unanimity and with EP consent, to extend the powers and functions of the EPP to include serious cross-border crime.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates page 45 to 48 to a presentation of a history of varying degrees of, including some reasons for, official British opposition under the heading ‘European public prosecutor’.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee documented a fairly nuanced exchange of views by witnesses on the European public prosecutor, on pages 151 to 153.
The general feeling among witnesses and the Committee seemed to be that the European public prosecutor’s office would be created under the provisions on enhanced cooperation, by a group of states, but without British participation.
There was no definitive answer to the question if the extension of the European public prosecutor’s powers to other serious cross-border crime fell under the same rules for enhanced cooperation, or if the fourth paragraph was meant to uphold the unanimity rule in case nine or more states included the extension of powers in the original draft regulation or a later amending proposal.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under ‘En europeisk åklagarmyndighet’ refers to the protracted debate about the need for a European public prosecutor, summarising opposing views, and the government ends up with the conclusion to wait and see (pages 323 to 325).
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) offers a detailed description of Article 69e TFEU (ToL), renumbered Article 86 TFEU on pages 202–203.
In addition, there is a value judgment on page 89: Finland has not found the establishment of the European public prosecutor’s office to be necessary, but the agreed arrangement is acceptable.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), presents the same remarks on page 205, with the value based judgment on page 91.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
The Treaty of Lisbon fails to bring the new provision on the European public prosecutor’s office under qualified majority voting and the ordinary legislative procedure, but it enables a group of nine or more member states to establish enhanced cooperation.
***
Europe Day brought EU citizens one valuable, although belated, gift: Consolidated versions of the Treaty on European Union (TEU) and on the Treaty on the Functioning of the European Union (TFEU) were published in the Official Journal of the European Union, which makes them feel somewhat more official than the Council’s consolidated version made available 16 April 2008.
From now on we are going to use OJ 9.5.2008 C 115 as our reference.
We look forward to the arrival of these consolidated versions of the Treaty of Lisbon in book form to our distant shores.
***
Article 86 of the Treaty on the Functioning of the European Union (TFEU) forms the basis for the eventual establishment of a European public prosecutor. The Article is found in OJ 9.5.2008 C 115/82–83. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 86 TFEU
1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
In the absence of unanimity in the Council, a group of at least nine Member States may request that the draft regulation be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft regulation 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.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the regulation provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The regulations referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
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: …”
The IGC 2007 then presented the wording of Article 69e TFEU (ToL) otherwise as above, but the clarifying words ‘in the Council’ were later added to the second subparagraph of the first paragraph (OJ 17.12.2007 C 306/65–66). In the consolidated version Article 69e was to become Article 86 TFEU. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2).Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”
***
The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed.
***
The possible European public prosecutor is a new office, so there is no directly corresponding provision in the current treaties.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a European public prosecutor’s office with a wide mandate: to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union. But, due to resistance from some members (or, in fact, member states), the proposed new office came at the price of unanimity in the Council.
Here is Article III-175 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Article III-175 Draft Constitution
1. In order to combat serious crime having a cross-border dimension, as well as crimes affecting the interests of the Union, a European law of the Council of Ministers may establish a European Public Prosecutor's Office from Eurojust. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
***
The IGC 2004 narrowed the primary scope of the European public prosecutor’s office to crimes affecting the financial interests of the EU, although a new fourth paragraph opened up the possibility to extend the powers of the office, at the same time or later.
This is the text of Article III-274 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/121):
Article III-274 Constitution
1. In order to combat crimes affecting the financial interests of the Union, a European law of the Council may establish a European Public Prosecutor's Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament.
2. The European Public Prosecutor's Office shall be responsible for investigating, prosecuting and bringing to judgment, where appropriate in liaison with Europol, the perpetrators of, and accomplices in, offences against the Union's financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
3. The European law referred to in paragraph 1 shall determine the general rules applicable to the European Public Prosecutor's Office, the conditions governing the performance of its functions, the rules of procedure applicable to its activities, as well as those governing the admissibility of evidence, and the rules applicable to the judicial review of procedural measures taken by it in the performance of its functions.
4. The European Council may, at the same time or subsequently, adopt a European decision amending paragraph 1 in order to extend the powers of the European Public Prosecutor's Office to include serious crime having a cross-border dimension and amending accordingly paragraph 2 as regards the perpetrators of, and accomplices in, serious crimes affecting more than one Member State. The European Council shall act unanimously after obtaining the consent of the European Parliament and after consulting the Commission.
***
The provision on the European public prosecutor’s office is one more example where the member states have been unable to reach an unanimous agreement to move to qualified majority voting (QMV) in the Council and the ordinary legislative procedure (co-decision), with a fully developed role for the European Parliament.
In the face of long-standing opposition, no unanimous decision would have materialised in the Council in a foreseeable future.
On the other hand, certain member states feel strongly that the fight against serious cross-border crime, or at least crimes affecting the financial interests of the EU, should be stepped up by the means of more effective action.
This Gordian knot was cut by the IGC 2007 Mandate and the resulting Article 86 TFEU, by enabling a group of at least nine member states the option to forge ahead with enhanced cooperation. The worst curses of unanimity can be avoided, when unwilling member states are unable to prevent the progress of others, but are spared the discomfort of being dragged into arrangements they dislike.
***
The discussion date back to at least the European Convention, but here we are satisfied with a small sample of comments and views post Lisbon.
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69e TFEU (ToL), Article 86 TFEU (page 19):
“This is a new provision as compared to the current Treaties. The additions to this Article in the draft Reform Treaty (as compared to the Constitutional Treaty) provide for possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 86 TFEU, Article 69e TFEU (ToL) in the original Lisbon Treaty:
“New. Enables the Council, by unanimity and with EP consent, to establish a European Public Prosecutor’s Office to investigate and prosecute crimes affecting the EU’s financial interests. A passerelle enables the European Council, by unanimity and with EP consent, to extend the powers and functions of the EPP to include serious cross-border crime.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates page 45 to 48 to a presentation of a history of varying degrees of, including some reasons for, official British opposition under the heading ‘European public prosecutor’.
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139). Under ‘Eurojust and a European Public Prosecutor’ the Committee documented a fairly nuanced exchange of views by witnesses on the European public prosecutor, on pages 151 to 153.
The general feeling among witnesses and the Committee seemed to be that the European public prosecutor’s office would be created under the provisions on enhanced cooperation, by a group of states, but without British participation.
There was no definitive answer to the question if the extension of the European public prosecutor’s powers to other serious cross-border crime fell under the same rules for enhanced cooperation, or if the fourth paragraph was meant to uphold the unanimity rule in case nine or more states included the extension of powers in the original draft regulation or a later amending proposal.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under ‘En europeisk åklagarmyndighet’ refers to the protracted debate about the need for a European public prosecutor, summarising opposing views, and the government ends up with the conclusion to wait and see (pages 323 to 325).
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) offers a detailed description of Article 69e TFEU (ToL), renumbered Article 86 TFEU on pages 202–203.
In addition, there is a value judgment on page 89: Finland has not found the establishment of the European public prosecutor’s office to be necessary, but the agreed arrangement is acceptable.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), presents the same remarks on page 205, with the value based judgment on page 91.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
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
Sunday, 6 January 2008
EU Treaty of Lisbon: Enhanced cooperation
How can Member States advance without being held back by less integrationist countries? Articles 43 to 45 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) offer the possibility for a group of states to establish enhanced cooperation between themselves within the institutional framework of the EU (EC).
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
***
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
Article 10
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
***
A presentation of the Union’s external action will follow.
Ralf Grahn
Source:
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
***
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
Article 10
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
***
A presentation of the Union’s external action will follow.
Ralf Grahn
Source:
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007
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