As a corollary to the exclusionary powers of each member state to provide ‘national security’, the Treaty of Lisbon spells out the freedom of the member states of the European Union to cooperate and coordinate their actions as the see fit, outside the EU structures and under their responsibility.
Is this a fruitful approach to enhancing the security for EU citizens?
***
Article 73 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), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), 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 73 TFEU
It shall be open to Member States to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61f TFEU (ToL), which became Article 73 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 308/58).
***
The IGC 2007 Mandate mentioned the insertion of a provision about cooperation and coordination by member states in the field of national security as one of the modifications compared to the results of the IGC 2004 (Council document 11218/07, pages 7 – 8, point 19j). Point 2(a) of Annex 2 (page 15) spelt out the text of what then called the ‘following new second subparagraph’, but became Article 73 TFEU with almost identical wording.
Annex 1, point 4 (page 12), contained the amendments to be made in what was to become Article 4 TEU, including the sentence added to the end of the second paragraph: ‘In particular, national security remains the sole responsibility of each Member State’. – We mentioned the amended Article 4(2) TEU in yesterday’s post on Article 72 TFEU, when we wondered at what appeared to be a lack of discussion on the merits of this go-it-alone approach.
***
As the brainchild of the IGC 2007, Article 73 TFEU has no corresponding provision in the current treaties, the draft Constitution or the Constitutional Treaty.
***
Here are a few thoughts for you, dear readers, to develop further and possibly to discuss:
The member states of the European Union have introduced the term ‘national security’ into the EU treaties.
‘National security’ has been resolutely excluded from the scope of EU competences, by declaring it to be the sole responsibility of each member state, while ‘internal security’ is to some extent an area for EU action.
Member states may (as a meaningless consolation?) or may not cooperate or coordinate their actions between themselves in the field of ‘national security’, outside the EU structures and under their sole responsibility, as they see fit.
The only treaty obligations coming to my mind at this point seem to be of a negative kind and quite general in nature: to refrain from any measure which could jeopardise the attainment of the Union’s objectives (Article 4(3) TEU).
The troubling aspect is that ‘national security’ is centred on exclusionary turf thinking – to shut the EU and the other member states out from meddling in ‘our’ affairs – while evading the questions about what would be conducive to an enhanced level of security for citizens of the European Union.
Are the public goods delivered less important than the monopoly to handle or mishandle these affairs?
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
Showing posts with label national security. Show all posts
Showing posts with label national security. Show all posts
Sunday, 27 April 2008
Saturday, 26 April 2008
EU TFEU: Member states and internal security
The UK government has stressed the importance of retaining full control of national security. But a quick view at Lisbon Treaty provisions concerning ‘internal security’ and ‘national security’ fails to unearth substantial evidence on or even discussion about how the government’s approach will enhance the security of British nationals (or EU citizens).
Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?
***
Article 72 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), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), 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 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:
Article 64(1) TEC
1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Article 33 TEU
This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).
***
The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.
The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.
On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):
Article 4(2) TEU
“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.
***
Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.
This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »
The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.
The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’
What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):
“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”
On page 10, the UK government added some detail to its line on national security:
“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”
The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:
http://www.iiea.com/publicationxtest.php?publication_id=33
***
United Kingdom
Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.
What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’
The Comparative Table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf
The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:
‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’
(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)
The Library Research Paper 07/86 is accessible at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:
http://www.statewatch.org/euconstitution.htm
In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.
Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’
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 the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:
“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.
6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”
I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.
But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?
Ralf Grahn
EU Treaty materials:
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
Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?
***
Article 72 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), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), 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 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:
Article 64(1) TEC
1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Article 33 TEU
This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).
***
The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.
The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.
On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):
Article 4(2) TEU
“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.
***
Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.
This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »
The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.
The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’
What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):
“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”
On page 10, the UK government added some detail to its line on national security:
“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”
The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:
http://www.iiea.com/publicationxtest.php?publication_id=33
***
United Kingdom
Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.
What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’
The Comparative Table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf
The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:
‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’
(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)
The Library Research Paper 07/86 is accessible at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:
http://www.statewatch.org/euconstitution.htm
In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.
Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’
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 the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:
“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.
6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”
I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.
But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?
Ralf Grahn
EU Treaty materials:
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
Friday, 25 April 2008
EU TFEU: Internal security committee
Is this the new Ministry of the Interior of the European Union, with its henchmen ready to quash the cherished liberties of citizens of the member states in order to establish the Orwellian 1984 state?
I regret to announce that, yet again, conspiracy theorists would have to clear some virgin fields for scare-mongering, if the citizens of the European Union took the trouble to read the contents of the Treaty of Lisbon as regards justice and home affairs (JHA), or the area of freedom, security and justice (FSJ) as it is called, on the topic of the new internal security committee.
Regretfully? Well, life would be so much more colourful if the conspiracy theories were true.
***
Article 71 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), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), 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 71TFEU
(ex Article 36 TEU)
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61d ToL, which became Article 71 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 36 of the Treaty on European Union (TEU), to be replaced, is found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/28:
Article 36 TEU
1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to:
— give opinions for the attention of the Council, either at the Council's request or on its own initiative,
— contribute, without prejudice to Article 207 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article 29.
2. The Commission shall be fully associated with the work in the areas referred to in this title.
***
The European Convention proposed the following Article III-162 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-162 Draft Constitution
A standing committee shall be set up within the Council of Ministers in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minor change in Article III-261 (OJ 16.12.2004 C 310/114):
Article III-261 Constitution
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
The European Convention clarified the role of the committee by spelling out that its remit was internal security, instead of the current reference to ‘areas referred to in Article 29’, namely third pillar police and judicial cooperation in criminal matters.
The Constitutional Treaty and the Treaty of Lisbon brought only technical modifications.
***
Étienne de Poncins commented on the work of the European Convention in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : l’institution de ce comité est une des nouveautés proposées par la Convention dans la domaine de l’espace de liberté, de securité et de justice. Elle fait suite du constat de l’éclatment actuel des fonctions de coordination opérationelles entre les anciens piliers « communautaire » et « Justice et affaires intérieures » (JAI).
He then added a more audacious perspective, which has been more than fully extrapolated by some:
« Ce comité pourrait donner naissance à une structure opérationnelle préfigurant un état-major de police au niveau de l’Union européenne. Sa compétence devrait couvrir l’ensemble du champ de l’espace de l’espace de liberté, de securité et de justice, c’est-à-dire également la composante de contrôle des frontières extérieures. »
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland mentions the new standing committee, but emphasises that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available at the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
***
United Kingdom
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 the new provision, Article 71 TFEU, setting up a standing committee within the Council. The UK government and the House Committee seemed to share a preference for the new treaty term ‘national security’ to underline areas that are the sole responsibility of the member states, in contrast to the phrase ‘internal security’, which could cover internal security both within member states and within the European Union. Se pages 158 and 159 (points 6.238 to 6.243).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Professor Steve Peers remarks that ‘This committee can be regarded as a successor to the current Article 36 Committee, which prepares the Council’s policing and criminal law work, although the new committee will have a wholly operational role’. – In Statewatch analysis, EU Reorm Treat: analysis 1: Version 3 JHA provisions (22 October 2007). Available together with the other analyses through:
http://www.statewatch.org/euconstitution.htm
***
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) describes the purpose and contents Article 61d TFEU (ToL), renumbered Article 71 TFEU on page 189.
The government remarks that it is the task of the committee to facilitate the coordination of member states’ action. The new committee is not intended to limit the powers of the committee of the permanent representatives of the governments of the member states (Coreper), as pointed out in Article 207 TFEU (ToL), now renumbered Article 240 TFEU (and found on page 202 of the Council’s consolidated version).
The remit of the new committee covers all questions concerning internal security. Thus, it is wider than that of the present Article 36 TEU committee, competent to deal only with questions pertaining to Article 29 TEU. Thus, the new committee can deal with, for instance, border control, asylum or immigration, although these questions are currently dealt with at committee level (SCIFA).
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), contains the same remarks on pages 192 and 193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, mentions that the national parliaments and the European Parliament are to be kept informed about the operational committee (page 300).
Evaluating the results of the treaty negotiations, the Swedish government stresses the strategic national importance for Sweden of the continued development of the European police cooperation. The combat against for example trafficking in human beings, the illegal drugs trade and terrorism require well-working police and customs cooperation. The Treaty of Lisbon facilitates cross-border cooperation (page 326).
In a section on page 327, the Swedish government discusses the committee for operational cooperation. The government stresses the idea to focus on Union level strategic questions, and it mentions the role of the committee in the context of the solidarity clause. Additionally, the committee can serve as a forum for the exchange of experiences of work at the national level.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of the internal security committee, and the European Parliament and national Parliaments shall be kept informed of the proceedings, but the new permanent committee on internal security is explicitly set up within the Council, namely intergovernmentally.
While ‘internal security’ can mean both the protection of national citizens and of EU citizens, the proposed structures mean no wholesale adoption of a ‘Community’ approach to justice and home affairs, only a gradual realisation of the need for enhanced cooperation.
***
The committee on internal security looks like a parallel structure to the political and security committee covering the common foreign and security policy (mentioned in Articles 38 and 43 TEU and in Article 222 TFEU, following the numbering of the Council’s consolidated version).
Ralf Grahn
EU Treaty materials:
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
I regret to announce that, yet again, conspiracy theorists would have to clear some virgin fields for scare-mongering, if the citizens of the European Union took the trouble to read the contents of the Treaty of Lisbon as regards justice and home affairs (JHA), or the area of freedom, security and justice (FSJ) as it is called, on the topic of the new internal security committee.
Regretfully? Well, life would be so much more colourful if the conspiracy theories were true.
***
Article 71 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), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), 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 71TFEU
(ex Article 36 TEU)
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61d ToL, which became Article 71 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 36 of the Treaty on European Union (TEU), to be replaced, is found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/28:
Article 36 TEU
1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to:
— give opinions for the attention of the Council, either at the Council's request or on its own initiative,
— contribute, without prejudice to Article 207 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article 29.
2. The Commission shall be fully associated with the work in the areas referred to in this title.
***
The European Convention proposed the following Article III-162 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-162 Draft Constitution
A standing committee shall be set up within the Council of Ministers in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minor change in Article III-261 (OJ 16.12.2004 C 310/114):
Article III-261 Constitution
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
The European Convention clarified the role of the committee by spelling out that its remit was internal security, instead of the current reference to ‘areas referred to in Article 29’, namely third pillar police and judicial cooperation in criminal matters.
The Constitutional Treaty and the Treaty of Lisbon brought only technical modifications.
***
Étienne de Poncins commented on the work of the European Convention in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : l’institution de ce comité est une des nouveautés proposées par la Convention dans la domaine de l’espace de liberté, de securité et de justice. Elle fait suite du constat de l’éclatment actuel des fonctions de coordination opérationelles entre les anciens piliers « communautaire » et « Justice et affaires intérieures » (JAI).
He then added a more audacious perspective, which has been more than fully extrapolated by some:
« Ce comité pourrait donner naissance à une structure opérationnelle préfigurant un état-major de police au niveau de l’Union européenne. Sa compétence devrait couvrir l’ensemble du champ de l’espace de l’espace de liberté, de securité et de justice, c’est-à-dire également la composante de contrôle des frontières extérieures. »
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland mentions the new standing committee, but emphasises that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available at the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
***
United Kingdom
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 the new provision, Article 71 TFEU, setting up a standing committee within the Council. The UK government and the House Committee seemed to share a preference for the new treaty term ‘national security’ to underline areas that are the sole responsibility of the member states, in contrast to the phrase ‘internal security’, which could cover internal security both within member states and within the European Union. Se pages 158 and 159 (points 6.238 to 6.243).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Professor Steve Peers remarks that ‘This committee can be regarded as a successor to the current Article 36 Committee, which prepares the Council’s policing and criminal law work, although the new committee will have a wholly operational role’. – In Statewatch analysis, EU Reorm Treat: analysis 1: Version 3 JHA provisions (22 October 2007). Available together with the other analyses through:
http://www.statewatch.org/euconstitution.htm
***
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) describes the purpose and contents Article 61d TFEU (ToL), renumbered Article 71 TFEU on page 189.
The government remarks that it is the task of the committee to facilitate the coordination of member states’ action. The new committee is not intended to limit the powers of the committee of the permanent representatives of the governments of the member states (Coreper), as pointed out in Article 207 TFEU (ToL), now renumbered Article 240 TFEU (and found on page 202 of the Council’s consolidated version).
The remit of the new committee covers all questions concerning internal security. Thus, it is wider than that of the present Article 36 TEU committee, competent to deal only with questions pertaining to Article 29 TEU. Thus, the new committee can deal with, for instance, border control, asylum or immigration, although these questions are currently dealt with at committee level (SCIFA).
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), contains the same remarks on pages 192 and 193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, mentions that the national parliaments and the European Parliament are to be kept informed about the operational committee (page 300).
Evaluating the results of the treaty negotiations, the Swedish government stresses the strategic national importance for Sweden of the continued development of the European police cooperation. The combat against for example trafficking in human beings, the illegal drugs trade and terrorism require well-working police and customs cooperation. The Treaty of Lisbon facilitates cross-border cooperation (page 326).
In a section on page 327, the Swedish government discusses the committee for operational cooperation. The government stresses the idea to focus on Union level strategic questions, and it mentions the role of the committee in the context of the solidarity clause. Additionally, the committee can serve as a forum for the exchange of experiences of work at the national level.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of the internal security committee, and the European Parliament and national Parliaments shall be kept informed of the proceedings, but the new permanent committee on internal security is explicitly set up within the Council, namely intergovernmentally.
While ‘internal security’ can mean both the protection of national citizens and of EU citizens, the proposed structures mean no wholesale adoption of a ‘Community’ approach to justice and home affairs, only a gradual realisation of the need for enhanced cooperation.
***
The committee on internal security looks like a parallel structure to the political and security committee covering the common foreign and security policy (mentioned in Articles 38 and 43 TEU and in Article 222 TFEU, following the numbering of the Council’s consolidated version).
Ralf Grahn
EU Treaty materials:
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
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