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

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

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

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

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

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

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


Interior goes international

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

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

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



Ralf Grahn



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


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

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

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

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

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

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

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


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

Cecilia Malmström and EU Home Affairs

The Lisbon Treaty entered into force a year ago, and the area of freedom, security and justice (AFSJ) now resembles 'normal' policies and internal actions of the European Union more than before. Justice and Home Affairs affect citizens and businesses more directly than most EU policies, and there is a whole lot going on.


Home Affairs

Home Affairs commissioner Cecilia Malmström runs a fairly active blog in Swedish, Mitt Europa (My Europe), which adds a human touch to security and migration issues.

If you want information in English, you can turn to Malmström's home page at the European Commission, as well as the web pages of the new Directorate-General for Home Affairs (in action since 1 July 2010).

The commissioner keeps updating her web pages, but the Documentation centre and Newsroom of DG Home Affairs still seem lethargic.

Even the tip of the JHA iceberg is big, as you can see if you turn to the 37 pages of conclusions from the last meeting of this Council configuration during the Belgian presidency:

Press release: 3051st Council meeting (Justice and Home Affairs), 2-3 December 2010 (provisional version; document 16918/10)

One year since the Lisbon Treaty entered into force and half a year from the establishment of the DG Home Affairs, we can ask: How long will it take before media, politicians, officials, researchers, businesses and citizens outside specialist circles take notice?



Ralf Grahn



P.S. One of the best legal Euroblogs available is Kartellblog.de, where the attorney Johannes Zöttl writes in German about antitrust and merger control, but also about social media in a professional setting. Highly recommended.

Inquisition v. Giordano Bruno in EU area of freedom, security and justice (AFSJ)?

My latest post about the conflict between the Council (member states) and the Commission regarding the EU's Stockholm Programme left me wondering if we should go back in order to move forward.


Lisbon Treaty at a tender age

For some background on EU justice and home affairs (JHA), you could read the following blog posts concerned with the Treaty reform stages which led to the Treaty of Lisbon: EU TFEU: Area of freedom, security and justice I (21 April 2008), EU TFEU: Area of freedom, security and justice II (22 April 2008) and EU TFEU: Strategic guidelines for freedom, security and justice (22 April 2008).


Solemn promises to EU citizens

The signing heads of state or government and the ratifying parliaments made the citizens of the EU a few solemn promises. They could not have placed the founding values, emphasising civil rights and freedoms, much higher than they are, in Article 2 of the Treaty on European Union (OJEU 30.3.2010 C 83):

Article 2 TEU

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Already in Article 3(2) TEU they make a firm commitment, ”shall offer”:

Article 3(2) TEU

2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

If you are interested in textual hierarchy, you may notice that this text precedes the establishment of an internal market, mentioned in paragraph 3.


AFSJ

The concrete provisions on the area of freedom, security and justice (AFSJ) are found in Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU), more precisely the Articles from 67 to 89.

While Article 67 TFEU lays down the general aims, Article 68 underlines the role of the European Council in setting the strategic guidelines for the AFSJ:

Article 68 TFEU

The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.

Back in April 2008 I wrote that the European Council was the most important institution of the European Union.The power to define the guidelines was hardly going to diminish this position, even if the official reason for the provision was (only) to codify existing practice, as when the Tampere Programme and the Hague Programme were adopted.


Criteria?

However, it would seem that the guidelines have to fulfil the criteria of the founding values and the area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured. These have been promised to the EU citizens. They are among the expectations of citizens in an objective sense, and EU action would have to be effective enough to attain the goals.

On the other hand, how binding are ”strategic guidelines” for legislative and operational planning?

Is the JHA Council the only authority of importance, when it wants to instate the strategic guidelines as the only guiding frame of reference for the political and operational agenda of the European Union in the Area of Justice, Security and Freedom [sic!]?

Who was right, the Inquisition or Giordano Bruno?

Update: Sorry, I missed providing a link to the Wikipedia article on the fascinating life of Giordano Bruno. For those who read Italian there is a brief biography by Anna Foa: Giordano Bruno (il Mulino).

Perhaps we have cause to look for a second opinion on what the Stockholm Programme should achieve.




Ralf Grahn



P.S. If you have to keep up with what the tribalists are doing, England Expects is one of the nicer ways to go about it. Written by the UKIP press officer Gawain Towler the blog is frequently updated, it is not devoid of humour and sometimes the EU institutions would be well advised to take its criticism to heart.

EU Stockholm Programme heresy?

Yesterday I wondered if EU theology needed to introduce the term ”limbo” to explain the whereabouts of the Action Plan Implementing the Stockholm Programme (entry in Swedish; use Google translation and the sources in English or your own language if you are interested): Handlingsplanen för Stockholmsprogrammet: I limbo? (16 November 2010)

The Council of the European Union (Justice and Home Affairs) twice accused the Commission of deviating from scripture sacralised by the European Council (with the head of state or government from each member state). On the Commission's tracking system PreLex all traces of the proposed Action Plan are lost since 3 June 2010.

The Council was critical enough, but it failed to specify the issues which in its view went beyond the limits of the Stockholm Programme, or those questions which had not been addressed in a satisfactory manner. Thus, the Council conclusions do not meet adequate standards of openness, i.e. being readily understood by outsiders such as EU citizens, without extensive comparative study.

Accusations of heresy become grave matters when they emanate from the Inquisition, so instead of speeding towards the future, we need to go back to how the area of freedom, security and justice (AFSJ) is doing, now that the Lisbon Treaty is in force.



Ralf Grahn



P.S. Despite its English name, Diner’s room is a blog in French, where “Jules” writes about European and French law as well as politics. Don’t read Diner’s room if you have preconceived ideas about blogs being uncouth, and want to cling to your prejudices. Otherwise, feel free to enjoy well researched and argued posts on a quality blog.

EU JHA: Stockholm Programme officially published

Justice and home affairs (JHA) was an area where the Lisbon Treaty brought about significant changes, introducing the ordinary legislative procedure into judicial cooperation in criminal matters and police cooperation. (See December 2009 summary by the General Secretariat of the Council of the European Union.)

In addition, the European Union’s emerging area of freedom, security and justice (FSJ) has a direct bearing on EU citizens.

During 2010─2014 we are going to see a lot of legislative activity, outlined in the Stockholm Programme.

We now have a new and final reference to the Stockholm Programme, published in the Official Journal of the European Union in the official languages:




The Stockholm Programme — An open and secure Europe serving and protecting citizens; OJEU 4.5.2010 C 115/1.


The official publication of a final and agreed text should free us from one minor annoyance, when recently the European Commission referred to the Swedish Council presidency pages or to document 17024/09, whereas the JHA Council used a new reference, document 5731/10, without explanation.



Next step


The JHA Council plans to adopt the proposed Stockholm Programme Action plan in June 2010, before the end of the Spanish presidency of the Council of the European Union.

The Communication (proposal) by the European Commission under discussion:



Delivering an area of freedom, security and justice for Europe's citizens
Action Plan Implementing the Stockholm Programme; Brussels, 20.4.2010; COM(2010) 171 final



If you have information about publications assessing the EU’s justice and home affairs (JHA) from a pan-European or national perspective, especially the Stockholm Programme or the proposal for the implementing Action Plan, please feel free to share them with the readers of Grahnlaw, by posting a comment or by sending me an e-mail.




Ralf Grahn

UK & EU: Justice issues in Europe (Introduction)

One of the relatively rare assessments of Justice and Home Affairs (JHA) in the European Union published after the Stockholm Programme and before the adoption of the implementing Action Plan is:




UK House of Commons Justice Committee: Justice issues in Europe (HC 162-I; published 6 April 2010; 60 pages)


In this blog post we summarise the Introduction.



Introduction


The Committee Report is the result of a fairly detailed (page 5):

…inquiry into justice issues in Europe with a particular focus on developments and the implications for the 2.2 million British citizens living in other member states and 2.12 million people living in the UK who were born in another member state.

The Report briefly recapitulates the history of the EU’s area of freedom, security and justice (FSJ): the Treaty of Amsterdam, the Tampere Programme and the Hague Programme (page 5).


The Report describes the area of freedom, security and justice as still very much a “work in progress”, before embarking on an outline on the future work to be done under the Stockholm Programme (page 6).


The Committee notes that mutual trust is fairly easy to grasp, but hard to achieve in the field of legislation and policy on justice (page 6).


Box 1 on pages 8 and 9 contains a convenient overview of justice priorities in the Stockholm Programme, under the following headlines:

• Promoting citizenship and fundamental rights
• A Europe of law and justice
• A Europe that protects
• Improving the quality of legislation and its implementation

With the establishment of mutual trust as a cornerstone of judicial cooperation and the fundamental rights of EU (and UK) citizens as starting points, the Committee chose the following key themes for its inquiry (page 9):

• The need to strike balances between proportionality, the rights of suspects and the accused in criminal proceedings, and the enforcement of security at EU and national level through mutual co-operation.
• The balance between basic principles of justice and fairness for victims and the rights of suspects and defendants rights and levels of awareness of those rights
• The cost-benefits of activity to create an area of freedom, security and justice
• The extent of monitoring and evaluation and the relative lack of enforcement.

The emphasis is on criminal justice issues (page 9).



The Committee starts its treatment of the Lisbon Treaty with a short historic overview from the Treaty of Amsterdam, before a summary of the changes brought about by the Treaty of Lisbon and the UK opt-in protocol, as well as a description of the emergency brake (pages 10 to 12).


The extended jurisdiction of the Court of Justice of the European Union (CJEU) is explained on page 12. It remains unclear if Britain will opt in to the jurisdiction of the CJEU within the five year timeframe (page 17).


The Committee describes the legal entry into force of the Charter of Fundamental Rights of the European Union and mentions that the European Union aims to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (page 12 to 13).


Will the Lisbon Treaty facilitate legislation and policy-making in the field of justice? The initial response of the Committee is cautious (page 13 to 14).


Naturally, the extraordinary position of the United Kingdom has to be discussed. The Committee argues that the position of UK participation has become more flexible, but clarifications are needed with respect to amendments Britain opposes, although it has consented to the original provisions. The Committee depicts the UK’s role in EU justice and home affairs as a key one (page 14 to 16).


The Committee welcomed the Government’s pragmatic attitude (evidence-based practical measures; “look before you legislate”) and it was encouraged by seeing this perspective reflected in the Stockholm Programme (page 16).


The Committee notes that mutual recognition is at the heart of what the EU is trying to achieve in the area of freedom, security and justice under the Stockholm programme and the Lisbon Treaty. The Government of Britain is extremely cautious about approximation (harmonisation) of criminal law, but the Committee remarks that the proposals in the Stockholm Programme and the Lisbon Treaty together give rise to the potential for a significant body of new law (pages 17 and 18).




Ralf Grahn



P.S. Information about materials from different member states and in various EU languages on the Stockholm Programme and the proposed Action Plan for implementation is most welcome. Write a comment or send me an e-mail about unofficial and official publications

EU: Freedoms and justice or security? Call for materials

Few EU policy areas have as direct a bearing on citizens in the European Union (and outsiders) as justice and home affairs (JHA).

Time is running short for an informed public debate about major policy choices.


Do the next five years offer us EU citizens more freedoms and justice or ever increasing controls (security)? The implementation blueprint for the first five years under the Lisbon Treaty in the European Union’s area of freedom, security and justice (FSJ) is heading for final adoption in June 2010.

In a direct sense, the Action Plan, Delivering an area of freedom, security and justice for Europe's citizens ─Action Plan Implementing the Stockholm Programme, is going to be the roadmap for future action by the European Union. Indirectly, potentially converging views at EU level may affect the thrust of justice and home affairs legislation and policies at national level.



Recap



The European Commission refers to document 17024/09 as the Stockholm Programme, whereas the Council seems to have replaced it by a new document 5731/10, without indicating the substitution or the reasons.



The Justice and Home Affairs Council has issued preliminary conclusions (8920/10) on the Commission Communication COM(2010) 171 final, the proposed Stockholm Progamme Action Plan. (See Grahnlaw: EU JHA Council Conclusions on Stockholm Programme Action Plan, 24 April 2010, as well as earlier blog posts on the Stockholm Programme.)



A week from adoption by the Commission, the Stockholm Programme Action Plan has now been posted visibly on Eur-Lex, under the latest COM documents made available. A few moments ago there were still only the three language versions we have mentioned and linked to earlier: English, French and German (with 20 official languages still missing less than two months ahead of final adoption).



Call for materials




In earlier blog posts, in addition to the basic documents, we have referred to contributions by Toby Archer (FIIA), Hugo Brady (CER), Tony Bunyan and Steve Peers (Statewatch), the House of Lords (European Union Committee) and others.

Now that the Lisbon Treaty has entered into force and the Stockholm Programme has been adopted, more is needed in order to achieve a borderless area of policy debate before the quinquennial landmarks are set in detail.

Dear Readers, please let us know about other relevant and timely materials.




Ralf Grahn

EU JHA Council Conclusions on Stockholm Programme Action Plan

This blog post is about the EU JHA Council Conclusions on Stockholm Programme Action Plan, a crucial building block in the area of freedom, security and justice (FSJ).




The provisional Conclusions of the EU JHA Council meeting were published in English Friday evening:



3008th Council meeting Justice and Home Affairs, Brussels, 23 April 2010 (document 8920/10)



Stockholm Programme



The Commission JHA web pages refer to document 17024/09 of 2 December 2009 as the Stockholm Programme, here as a link through the website of the Swedish Council presidency and here as an earlier direct link to the document:

The Stockholm Programme – An open and secure Europe serving and protecting the citizens; Brussels, 2 December 2009; document 17024/09



However, in the 23 April 2010 Conclusions, the Justice and Home Affairs Council refers to document 5371/10 as the Stockholm Programme, without indicating the document(s) it replaces, if any:



The Stockholm Programme - An open and secure Europe serving and protecting citizens; Brussels, 3 March 2010; Council document 5731/10


With some attention to detail, the Council and the Commission could make life easier for readers.



Conclusions: Stockholm Programme Action Plan



In the Grahnlaw blog post EU JHA: Stockholm Programme Action Plan in English, French and German (24 April 2010) we linked to the three existing language versions of the Commission Communication COM(2010) 171 final.

(The Council has registered it as document 8895/10; 22 April 2010. The Communication has not yet been registered on the Legislative Observatory of the European Parliament, Oeil.)

By the way, the Commission Communication refers to the Stockholm Programme as: Council document 17024/09, adopted by the European Council on 10/11 December 2009 (page 2, footnote 1).

The Justice and the Home Affairs Ministers, or their substitutes during this meeting with reduced attendance, were given a presentation of the Commission’s proposal, which is meant to guide implementation of the Stockholm Programme.



The JHA Council conclusions (8920/10) indicate that the Council wants to influence the final version, and that final adoption is scheduled for June 2010 (page 8). Here is the text, including the typos:

ACTION PLAN IMPLEMENTING THE STOCKHOLM PROGRAMME

Justice and home affairs ministers heard presentations by the Commission on its recommendations for an action plan implementing the Stockholm Programme (5731/10). Ministers welcomed the Commission paper, stressed, however, that the action plan should more closely mirror the objectives set out in the Stockholm Programme itself. The Council asked its preparatory bodies to swiftly start consultations on the action plan with a view to adopt the it in June 2010.

The Stockholm Programme is the multi-annual strategic work programme in the area of freedom, security and justice. It was adopted by the Council on 30 November 2009 and endorsed by the European Council on 10-11 December 2009. It sets out the priorities for EU action in the area for the next five years (2010-14). It puts the citizen at the heart of EU action and deals, among other things, with questions of citizenship, justice and security as well as asylum, migration and the external dimension of justice and home affairs.

It is ten years since the EU set itself the target of creating an area of freedom, justice and security. The Stockholm Programme will built on the progress made during the implementation of the Tampere Programme (2000-2004) and the Hague Programme (2005-2010).

But we are hardly much wiser as to the coming consultations.




Ralf Grahn

EU JHA: Stockholm Programme Action Plan in English, French and German

Earlier we linked to the English version of the Communication, which had been published. We have now been able to locate French and German language versions of the European Union’s Stockholm Programme Action Plan for justice and home affairs (JHA) 2010-2014. Thus, the three working languages of the European Commission are covered, but we still miss the text of COM(2010) 171 final in 20 official EU languages.



English



Delivering an area of freedom, security and justice for Europe's citizens - Action Plan Implementing the Stockholm Programme; Brussels, 20.4.2010; COM(2010) 171 final



French



Mettre en place un espace de liberté, de sécurité et de justice au service des citoyens européens - Plan d'action mettant en oeuvre le programme de Stockholm ; Bruxelles, le 20.4.2010 ; COM(2010) 171 final



German


Ein Raum der Freiheit, der Sicherheit und des Rechts für die Bürger Europas - Aktionsplan zur Umsetzung des Stockholmer Programms; Brüssel, den 20.4.2010; KOM(2010) 171 endgültig




Ralf Grahn

EU JHA Council: Stockholm Programme Action Plan

Ahead of the EU’s Justice and Home Affairs (JHA) Council today, 23 April 2010, in Brussels, the European Commission has issued a brief outline of the matters to be discussed:


Justice and Home Affairs Council: 23 April 2010 in Brussels (22 April 2010; MEMO/10/148)

The Stockholm Programme Action Plan, to be presented by the Commission, is still available only in English:



Delivering an area of freedom, security and justice for Europe's citizens Action Plan Implementing the Stockholm Programme (Brussels, 20.4.2010; COM(2010) 171 final; 69 pages).



Since there has been practically no opportunity for experts or the public to digest the proposed actions, we point out a few contributions of a more general nature, which we have not mentioned before.



Toby Archer


The Stockholm Programme had hardly been anointed by the European Council, when Toby Archer of the Finnish Institute of International Affairs published a briefing paper:



The Stockholm Programme: Europe’s next step to be an “area of freedom, security and justice” (Briefing paper 49; 15 December 2009; 7 pages)

Archer’s briefing paper is a good introduction to the development of the EU’s area of freedom, security and justice (FSJ), and to some of the sensitive issues affecting future work.



Hugo Brady

Hugo Brady, of the UK based think tank the Centre for European Reform (CER), gave a critical assessment of EU justice and home affairs, as well as the Stockholm Programme:



The seven sins of Stockholm (on CER website; published in E!Sharp magazineMarch/April 2010)



Tony Bunyan

In Tony Bunyan’s view the the values the Commission professes and the actions it proposes are at odds in the Action Plan:



Statewatch Analysis: Commission: Action Plan on the Stockholm Programme: A bit more freedom and justice and a lot more security (no date; 12 pages)




Ralf Grahn

EU JHA: Stockholm Programme Action Plan published in English

Yesterday we noted on Grahnblawg (in Swedish) the materials we were able to locate with regard to the Action Plan for the Stockholm Programme, the EU’s Justice and Home Affairs Programme for 2010-2014.

At the time, we did not find the Action Plan itself. We were perplexed by the Commission referring to the Swedish presidency web pages instead of the final version of the Stockholm Programme. Council document 5371/10 was headlined as the Stockholm Programme, but its meaning was left unclear.

Since then, we can take note of at least one improvement.

The European Commission has now published the final version of its communication COM(2010) 171 in English, in the newsroom of the Commission’s Area of freedom, security and justice (Justice and Home Affairs):



Delivering an area of freedom, security and justice for Europe's citizens Action Plan Implementing the Stockholm Programme (Brussels, 20.4.2010; COM(2010) 171 final; 69 pages).


There are no indications yet about other language versions of this important document.



The Commission is going to present the proposed Action Plan to the Justice and Home Affairs (JHA) Council meeting tomorrow, 23 April 2010, exceptionally meeting in Brussels in April (instead of Luxembourg).




Ralf Grahn

Killed in inaction: The EU’s third pillar (Justice and Home Affairs)

Typical exaggerated headline writing, speaking about “inaction”, but the Lisbon Treaty truly did away with the so called third pillar of the European Union, Justice and Home Affairs (JHA) and some of its laborious decision-making procedures. Although again, some peculiarities remain, in typical EU fashion.



In addition to the entry into force of the Lisbon Treaty, the European Council has adopted, for the years 2010-2014, the Stockholm Programme (Conclusions of the European Council 10 to 11 December 2009; document EUCO 6/09; point 25; page 9):



The Stockholm Programme – An open and secure Europe serving and protecting the citizens (document 17024/09; version 2 December 2009).



State of the JHA union



Professor Steve Peers has published an updated version of the Statewatch Analysis: The ‘Third pillar acquis’ after the Treaty of Lisbon enters into force – Second version: 1 December 2009.

This means that Peers’ analysis includes the latest decisions taken by the JHA Council on 30 November 2009, the last day before the Lisbon Treaty entered into force.

The introduction describes the demise of the third pillar and presents the main features of JHA law, or the area of freedom, security and justice (FSJ)(pages 1 and 2).


The Annex lists the different categories and individual legal acts in force (page 3 to 12), with useful notes.


We have to be grateful to Professor Peers and to Statewatch for yet another timely clarification of “the law of the land”, but I wonder why the EU institutions have not taken up the challenge of publishing in “real time”.




Ralf Grahn



P.S. The specialised European Union Law and its sister blog in Bulgarian, by Vihar Georgiev, offer readers quick updates on important documents pertaining to EU law, highlighting noteworthy developments for lawyers, businesses and citizens. These frequently updated blogs are listed among the nearly 500 great euroblogs on multilingual Bloggingportal.eu, our common “village well” for fact, opinion and gossip on European affairs.



Why not pop over to read Grahnlaw’s sister blogs, Grahnblawg in Swedish and Eurooppaoikeus in Finnish?

British and Irish opt-outs from EU JHA law

Nowhere is the semi-detached nature of the house of the European Union more clearly to be seen than in the field of opt-outs, leaving some member states outside important policy areas. Few of these arrangements are more tangled than in the area of freedom, security and justice (FSJ).

We have also heard the leader of the UK Conservative party David Cameron put criminal justice on his list of policies to (re-)domesticate, even if few know either the current state of affairs or what exactly the proposed change would entail, when the Tory leader said:

The third area where we will negotiate for a return of powers is criminal justice.

We must be sure that the measures included in the Lisbon Treaty will not bring creeping control over our criminal justice system by EU judges.

We will want to prevent EU judges gaining steadily greater control over our criminal justice system by negotiating an arrangement which would protect it.

That will mean limiting the European Court of Justice’s jurisdiction over criminal law to its pre-Lisbon level, and ensuring that only British authorities can initiate criminal investigations in Britain.

Lisbon Treaty and Stockholm Programme


The Lisbon Treaty has entered into force, which has led to considerable change from 1 December 2009, with regard to criminal justice and police cooperation. It has also given cause to intense activity with regard to policy shaping.



After the Tampere and Hague programmes, it is the EU’s third new multi-annual FSJ programme, but it has been marked by the novel Lisbon Treaty. The European Council adopted, for the years 2010-2014, the Stockholm Programme (Conclusions of the European Council 10 to 11 December 2009; document EUCO 6/09; point 25; page 9):



The Stockholm Programme – An open and secure Europe serving and protecting the citizens (document 17024/09; version 2 December 2009).


Further, the European Council invited the Commission to present an Action Plan for implementing the Stockholm Programme, to be adopted at the latest in June 2010, and to submit a midterm review before June 2012.

In other words, the Action plan will be elaborated and adopted during the Spanish presidency of the Council of the European Union.

Naturally, we can expect legislative proposals to follow during the Belgian and Hungarian presidencies.


Opposite directions


Given the intense activity at EU level, heading towards deeper integration, and the existing British opt-outs and the promised reinforcement of the dividing wall, i.e. heading in the opposite direction, it would not be a bad idea to know what the situation is with regard to the United Kingdom and Ireland (and Denmark).



Statewatch analysis



Professor Steve Peers has produced an updated version of the Statewatch Analysis: EU Lisbon Treaty Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law – Version 4: 3 November 2009 (25 pages including the annexes).

Peers recalls that the Lisbon Treaty changes to EU Justice and Home Affairs (JHA) law are more far-reaching than in any other areas of EU law.

Despite the clear writing, already the key points (a-h) presented on pages 1 and 2 prepare the reader for a complicated situation.

Anyway, the paper is a useful recapitulation of the development of EU JHA law for anyone interested, as well as dealing with specific British and Irish issues, which elevate an already complex area of EU law to the level of “rocket science”.

But it would be hard to find a more succinct interpreter than Peers of the quagmire the UK and Ireland have established for themselves and the unity of EU law in the JHA area.

Incidentally, I asked myself: Is there a saying “Reject the cake and eat it too”?




Ralf Grahn



P.S.EU Law Blog is a fine example of specialised blogs, which together cover almost all aspects of European (Union) affairs. It is listed among the nearly 500 great euroblogs on multilingual Bloggingportal.eu, our common “village well” for fact, opinion and gossip on European affairs.



While you’re at it, why not pop over to read Grahnlaw’s sister blogs, Grahnblawg in Swedish and Eurooppaoikeus in Finnish?

EU Stockholm Programme background: Area of freedom, security and justice

The 2979th session of the Council of the European Union ─ Justice and Home Affairs configuration ─ starts in Brussels on Monday, 30 November 2009, under the Treaty of Nice, and continues on Tuesday, 1 December 2009, when the Lisbon Treaty has entered into force.



Although much of the Lisbon Treaty (OJEU 9.5.2008 C 115) tweaks the institutions, without affecting citizens directly, justice and home affairs (JHA), the area of freedom, security and justice (FSJ), is a policy area where the reforms will have impact on individuals (through secondary legislation).



Detailed view

For a more detailed view of the treaty provisions in force from 1 December 2009, you can look at Part three, Title V of the Treaty on the Functioning of the European Union (TFEU), Articles 67 to 89 (pages 73 to 84 in the consolidated, readable version of the treaty).

The legislative history of each Article has been presented on this blog, with further references to relevant materials.



Essential background



For the reader, who wants an introduction or a quick recap of the Lisbon Treaty reforms, the Fondation Robert Schuman prepared ten fact sheets available in French and English (December 2007). Here the relevant one is Sheet 6: The Lisbon Treaty and the area of freedom, security and justice (2 pages).



The Swedish presidency of the Council of the European Union has published a brochure for the general public (available in Swedish and English): A more secure and open Europe ─ The priorities of the Swedish Presidency for the Justice and Home Affairs Council (8 pages).



Barroso II Commission



On Friday, 27 November 2009, president-elect José Manuel Barroso allocated the portfolios for the commissioners proposed by the member states. Subject to the approval of the Commission as a body by the European Parliament, Cecilia Malmström will be responsible for home affairs in the Barroso II Commission and Viviane Reding will be in charge of justice, fundamental rights and citizenship during the next five years.

Most countries have separate ministers of the interior and ministers of justice. The responsibilities of the European Commission are both expanding and evolving. Politically, these issues are delicate; they concern individuals and striking the right balance between rights and repression is one of the most demanding tasks in modern government. The expected creation of two Commission portfolios has been favourably received.



JHA Council



Some progress has been made in opening up EU Council proceedings to the public. Generally, the Swedish presidency has been the best to date in presenting meetings and materials in a comprehensive manner to the public, as well as in its more open attitude with regard to publishing documents.

Public deliberations and debates are slowly making inroads into closed, smoke-free rooms. The press briefing for the JHA Council tells us that there is going to be a public deliberation (general debate) on the Stockholm Programme on Monday, under home affairs (page 2). On Tuesday, under justice, there is going to be a public debate (presumably on these parts of the draft programme).



Press conferences and public deliberations can be followed by video streaming on the Council’s audiovisual web page.



On the EU Council’s website, you can find background material for the 2979th JHA Council meeting 30 November to 1 December 2009: revised presidency briefing, agenda, background note, audiovisual note, public debates and deliberations 30 November, and public debates and deliberations 1 December.



Stockholm Programme



After the Tampere programme and the Hague programme, the European Union is about to adopt its third long term framework for its work in the area of freedom, security and justice: the Stockholm programme 2010-2014.

The JHA Council prepares the ground for the 10 to 11 December 2009 European Council, where the heads of state or government will adopt this framework of strategic value.



The Swedish presidency has published a second draft of the Stockholm Programme ─ An open and secure Europe serving and protecting the citizens (23 November 2009, document 16484/09; 73 pages).




Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page, or concentrate on the editors’ choices on the Home page. On most of the blogs you can comment and discuss our common European future.

SWIFTly signed ─ Long term damage? (Updated)

The “war on terror” has been a sorry saga of expediency overriding truth and the rule of law. Have the governments of the EU member states learnt anything? Perhaps not, if we look at the Council agenda for Monday.



Brussels Blogger has sounded the alarm regarding the plan of EU member state governments to sign an agreement with the US administration on the massive transfer of financial data; in SWIFT – EU to grant USA nearly unlimited access to all EU banking data (26 November 2009) and 5 reasons why the SWIFT deal is very bad for Europe (27 November 2009).


Julien Frisch has taken up the issue in EU to hand all banking details of Europeans to the US. A rapidly growing Facebook group demands that the deal is stopped.

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JHA Council


On the provisional agenda of the EU Council (Justice and Home Affairs) 30 November 2009, prepared under the Swedish EU Council presidency, is the so called SWIFT agreement:

“Council Decision authorising the signing of an Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Programme
- Adoption”

When have the texts been published for open debate? Where are the results of the public deliberations? What have the European Parliament and the national parliaments said?

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Openness and tranparency?



Who still remembers the promising tones of the Swedish work programme for the EU Council presidency about openness, transparency and accessibility?

“Europe is facing two overriding challenges: the global economic crisis and efforts to halt climate change. During its Presidency, Sweden will work hard to make progress on these and other important issues. The day-to-day EU work must be open, effective and results-oriented: open through transparency and accessibility, effective by moving these issues forward and results-oriented by taking action so that objectives are fulfilled and unexpected events are dealt with.” (Page 11)

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Democratic procedures and rule of law


The fight against terrorism and for the security of EU citizens is important, and it is beyond me to present an instant reasoned view on the necessity and proportionality of the privacy (data protection) breaches in the proposed SWIFT agreement, but signing such an agreement on the last day before the Lisbon Treaty enters into force is a sure-fire way for governments to cause distrust among EU citizens.

Taking the expedient course in the short term is often a guarantee of less credibility and more problems in the long term.


The EU Council is too limited and opaque to legitimise important decisions concerning fundamental rights.




Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. On most of the blogs you can comment and discuss our common European future.




Update 27 November 2009 about 14:40 EET



I have just read the EU Council’s Main topics for the coming fortnight, 30 November to 13 December 2009. Nowhere on the 15 pages is the SWIFT agreement mentioned. So much for openness, transparency and closeness to citizens.

House of Lords on EU Stockholm Programme

The European Union Committee of the House of Lords has published a short report The Stockholm Programme: home affairs ─ Report with evidence (9 November 2009; HL Paper 175; 32 pages).

Since the purpose of this post is just to highlight the publication, here is a quote on the background of the Stockholm programme and the contents of the report:

“On 10 June 2009 the Commission published a Communication to the European Parliament and the Council entitled “An area of freedom, security and justice serving the citizen”. This was considered at an informal JHA Council on 16–17 July 2009. The Swedish Presidency has prepared a draft of a new five-year programme—the Stockholm Programme—based on the Commission Communication, and this is likely to be approved by the Justice and Home Affairs Council on 30 November, and adopted by the European Council on 10–11 December 2009. This programme will then form the agenda for EU justice and home affairs legislation from 2010 to the end of 2014.

In this brief inquiry, conducted by Sub-Committee F,3 we have looked only at the home affairs content of that Communication.

With the entry into force of the Treaty of Lisbon all third pillar matters will, instead of requiring unanimity among the Member States, be adopted by qualified majority voting in the Council and codecision with the European Parliament. Virtually all initiatives under the Stockholm Programme will then apply to the United Kingdom only if the Government opt in.”

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The area of freedom, security and justice (usually justice and home affairs in British parlance) develops rapidly, contains interesting conflicts between freedoms and security aspects and it will become more of a normal EU policy area under the Lisbon Treaty (with regard to police and judicial cooperation in criminal matters).


The House of Lords reports on EU affairs are usually worth reading.



Ralf Grahn



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Stockholm Programme published ─ or not

The Swedish Presidency of the Council of the European Union has published ─ they say ─ a first draft Stockholm Programme, regarding EU police and customs cooperation, rescue services cooperation, criminal and civil law cooperation, and asylum, migration and visa policy for the period 2010-2014.

The Stockholm Programme will be presented to ministers of justice and home affairs on 30 November-1 December, and to foreign ministers on 6-7 December, prior to adoption by the European Council on 10-11 December.



Click on the link for additional information on the Swedish Presidency’s Justice and Home Affairs (JHA) web page, including items about the Stockholm Programme.


***


Stockholm Programme draft published?


Despite several attempts to access the 16 October 2009 draft Stockholm Programme through two links on the Swedish EU Council Presidency pages and a web page of the Government of Sweden, nothing happened.


If there is a technical error, it should be corrected soon, because the area of freedom, security and justice becomes even more important under the Treaty of Lisbon, and the balance between freedoms and security is one of the most challenging issues facing the European Union as a whole, the member states and EU citizens.


Dear Readers,

Tell me, if you have succeeded in accessing the official draft.



Ralf Grahn

Start updating, Jacques Barrot! (JHA)

The Commissioner in charge is Jacques Barrot: Welcome to the European Union’s area of freedom security and justice …


I was looking for information about the European Commission’s Justice and Home Affairs. What did I find? Or perhaps I should rephrase: What did I not find on the web pages of Barrot’s services?

The answer to the first question is: Almost no updated information.

The answer to the second question is: Antiquated information about one of the most rapidly evolving policy areas of the European Union.

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General page

The latest update on the introductory page about the area of freedom, security and justice is the third annual report or scoreboard, adopted 2 July 2008.

Newsroom

The so called Newsroom had an item on Europol’s report about the fight against terrorism, from 21 April 2009.

Not bad, being just a week old? But since then, the Commission has communicated on other issues, without updating its Newsroom page.

Documentation centre

Someone looking for reports, Green Papers and proposals would probably go to the Documentation centre. What would he find?

What he finds is the consolidated acquis of the EU under Title IV TEC and Title VI TEU, updated in October 2008.

This is a valuable compilation of information sources, but where are the new proposals and reports?

Funding opportunities

The page on funding opportunities has actually been updated 1 April 2009.

Jacques Barrot

The Commission Vice-President’s own web page contains a greeting and undated wishes for the European elections.

Directorate-General

The web page of Commissioner Barrot’s services, the Directorate-General for Justice, Freedom and Security, is a timeless piece, without any fresh contents.

Relevant web sites

There are links to various external web sites, but no contents on the web page.


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Conclusions

Fresh information should be on offer right where you land, but the main category pages are stale and almost useless if you look for updated information. Even if you start exploring the links, you will find that the JHA D-G seems to have other things on its mind than to inform the public in a timely manner.

I am perplexed. During Franco Frattini’s time, the JHA web pages were updated swiftly, with new documents available and easy to find. Now you get the feeling that you are entering the Kingdom of Sleep. What has happened and why?

The D-G’s web pages are unreliable, because you don’t know how much information is missing. The only useful pages for fresh information seem to be through the link to the latest press releases, but they do not link to the documents in question. You have to search for them separately. This makes the task harder.

To conclude: Stale and useless. A profound change of attitude plus a quick overhaul are in order.


Ralf Grahn

EU reform without the Lisbon Treaty? Justice and Home Affairs

What if the Treaty of Nice remains the foundation of the European Union in the foreseeable future? Can reforms of the Lisbon Treaty be salvaged on the basis of the existing treaties?

Professor Steve Peers has written a new Statewatch Analysis on one of the important fields of the amending treaty, the area of freedom, security and justice as it is known in EU parlance, but with the British more accustomed to call it justice and home affairs (JHA).

‘Changing the institutional framework for EU Justice and Home Affairs law without the Lisbon Treaty’ (July 2008; 9 pages) looks at the possibilities to amend the existing treaty rules on JHA decision-making rules and the jurisdiction of the Court of Justice, without a fully-fledged amendment to the treaties:

http://www.statewatch.org/news/2008/jul/sw-analysis-jha-transfer-july-2008.pdf

Peers concludes that the member states – acting unanimously – could achieve similar, but not identical results as under the Treaty of Lisbon through the existing ‘passerelle’ or enabling clauses.

***

Peers has made a valuable contribution to the understanding of the Treaty of Lisbon through a number of Statewatch Analyses covering both treaties, available at the Statewatch Observatory on the EU Constitution-Reform-Lisbon Treaty.

Readers interested in justice and home affairs law are advised to look at ‘Analysis no 1.3: JHA provisions’ concerning the general framework.

If relevant to the reader, ‘Analysis no 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ sorts out the complications.

Peers has described the general possibilities to ratify the Lisbon Treaty after the Irish rejection, or at least to implement the reforms in practice, in ‘Can the Treaty of Lisbon be ratified or implemented? A legal analysis’ (19 June 2008).

***

Individual JHA Articles of the Treaty on the Functioning of the European Union (TFEU) have also been compared with the current treaty provisions, the draft Constitution and the Constitution in posts on this blog, with references to additional sources.


Ralf Grahn

EU TFEU: Freezing terrorists’ funds

The Treaty of Lisbon makes it easier for the EU to freeze terrorists’ funds. Even the UK government seems enthusiastic.

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Article 75 of the Treaty on the Functioning of the European Union (TFEU) 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 98), with the location of the provision added from the table of equivalences (page 460 to 462):

Part Three ‘Policies and internal actions of the Union’

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

Chapter 1 ‘General provisions’

Article 75 TFEU
(ex Article 60 TEC)

Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.

The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph.

The acts referred to in this Article shall include necessary provisions on legal safeguards.

***

In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61h TFEU (ToL), which became Article 75 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).

The referral to the objectives of the area of freedom, security and justice in the original Lisbon Treaty was to Article 61 TFEU (ToL), which became Article 67 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).

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Article 60 of the Treaty establishing the European Community (TEC), to be moved and amended, is found in the latest consolidated version of the current treaties, under TEC Title III ‘Free movement of persons, services and capital’ and its Chapter 4 ‘Capital and payments’ (OJ 29.12.2006 C 321 E/65):

Article 60 TEC

1. If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.

2. Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest.

The Council may, acting by a qualified majority on a proposal from the Commission, decide that the Member State concerned shall amend or abolish such measures. The President of the Council shall inform the European Parliament of any such decision taken by the Council.

***

The European Convention proposed Article III-49 of the draft Treaty establishing a Constitution for Europe, still under Section 4 ‘Capital and payments’ (OJ 18.7.2003 C 169/35):

Article III-49 Draft Constitution

Where necessary to achieve the objectives set out in Article III-158, in particular as regards prevention of and fight against organised crime, terrorism and trafficking in human beings, European laws may define a framework for measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-state entities.

The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the laws referred to in the first paragraph.

***

Article III-160 of the Treaty establishing a Constitution for Europe, still under Section 4 on capital and payments, drew upon but amended the draft provision (OJ 16.12.2004 C 310/68):

Article III-160 Constitution

Where necessary to achieve the objectives set out in Article III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.

The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph.

The acts referred to in this Article shall include necessary provisions on legal safeguards.

***

The current Article 60 TEC refers to cases envisaged in Article 301 TEC, namely economic sanctions targeting one or more third countries and based on a prior common position or joint action adopted according to the TEU (common foreign and security policy). The urgent unilateral measures by a member state are targeted at countries, too.

The existing provision is ill adapted to measures concerning non-state actors, such as terrorists.

The European Convention drew the first provision, which referred to the aims of the area of freedom, security and justice (FSJ). The proposed scope of Article III-49 of the draft Constitution was rather wide, including the prevention of and fight against organised crime, terrorism and trafficking in human beings.

Article III-160 of the Constitutional Treaty retained the referral to the objectives of the area of freedom, security and justice, but the IGC 2004 limited the scope of the provision to terrorism and related activities and to a framework for ‘administrative’ measures. The third paragraph on legal safeguards was added. Additionally, the IGC 2004 agreed on a Declaration (number 15) on Articles III-160 and III-322, recalling the respect for fundamental rights and the need for clear and distinct criteria.

Article 75 TFEU (61h ToL) of the Treaty of Lisbon contains technical adjustments and minor stylistic changes, but in essence it takes over the text of the Constitution.

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There are two declarations to take into account. First, we have Declaration (number 25) on Articles 75 and 215 of the Treaty on the Functioning of the European Union, almost identical to the corresponding declaration of the IGC 2004 (in the Council’s consolidated version of the Lisbon Treaty, document 6655/08, page 439):

25. Declaration on Articles 75 and 215 of the Treaty on the Functioning of the European Union

The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.

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Second, there is a unilateral declaration of intent by the UK, namely (on page 453):

65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 75 of the Treaty on the Functioning of the European Union

The United Kingdom fully supports robust action with regard to adopting financial sanctions designed to prevent and combat terrorism and related activities. Therefore, the United Kingdom declares that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of all proposals made under Article 75 of the Treaty on the Functioning of the European Union.


Ralf Grahn


Consolidated EU Treaties:

If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:

http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html