Denmark: EU Council presidency with opt-outs

The previous Grahnlaw post mentioned three of the Danish EU opt-outs. Let us take a brief look at all of them.


Danish opt-outs

At least on paper, Denmark looks like Britain, having four opt-outs from European co-operation. These opt-outs concern defence policy, justice and home affairs, the euro and union citizenship, the Folketinget (parliament) mentions in its presentation.

Earlier governments as well as the current one, led by Helle Thorning-Schmidt, have toyed with the idea to scrap one or more of the opt-outs. It would be in the national interest according to the Danish Institute for International Studies (DIIS), but the politicians have not yet braved the uncertain outcome of a national referendum.

The atmosphere in Denmark is much more cooperative, constructive and positive than in the United Kingdom, where obstructionism, vetoes, repatriation of powers and calls for secession compete for the top spot, interspersed by occasional reminders about the importance of the internal market for British jobs and businesses.

Fiscal pacts and Schengen

Denmark participates in the Euro Plus Pact and in the negotiations aiming at a new, intergovernmental fiscal compact. The UK remains outside the first and has forced the intergovernmental route for the second.

Denmark is also a part of the Schengen Area with common external borders and free travel inside.

***

The NYT IHT offers a description of Denmark's position at the beginning of the Council presidency.



Ralf Grahn

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?

Open Europe's EU reform

Open Europe lobbies actively on European issues through critical comment, a daily press summary highlighting almost every derogatory news item available, media appearances, op-ed articles and participation in events.



The torrent of negative comment raised my interest to find out what Open Europe is lobbying for, in other words what the “reformed” European Union would look like.

I found a web document called Our vision. When I asked, Open Europe admitted that they do not have one document that sets out their reform agenda in one place. However, for specific reform proposals they recommended Chapter 5 of their publication Out of control? Measuring a decade of EU regulation and The European Parliament – What does it do and how does it affect your everyday life?




***


Finalité

Every member state has signed up to the aim of an ever closer union among the peoples of Europe. This aim is the first one stated in the preamble of the Treaty establishing the European Community (since the Treaty of Rome, 1957, EEC Treaty). Article 1 of the Treaty on European Union sets out that the establishment of the EU marks a new step in the process of creating this closer union among the peoples of Europe.

The process and the direction are clear, but the treaties do not spell out the speed or the ultimate goals (finalité) of European integration.

Since I am primarily interested in the overall vision of Open Europe, Our vision remains the main source for assessing their alternative vision. For systematic reasons, I will choose the order of the issues and the comments.



Main aim

By calling for a flexible European Union, based on voluntary cooperation, Open Europe rejects the basic aim of the treaties, at least for the United Kingdom.

It looks hard to reconcile a repudiation of an organisation’s main aims with continued membership. The logical option would be for Britain to withdraw from the European Union.



Practical alternatives

Withdrawal

Open Europe sees that the current process of integration leads to failure, deadlock and crisis. The UK (and other member states) could seek a looser relationship with the centre - for example replacing their current mode of membership by free trade and single market agreements with the other member states.

Logically, the “looser relationship” would mean secession.

This option would be clear-cut, with participation in the single market through international agreements with the European Union (member states). The models already exist.

Iceland, Liechtenstein and Norway together with the 27 EU member states form the European Economic Area (EEA), which allows them access to the internal market as well as the option to participate in EU programmes of choice. (In addition, they are part of the Schengen area of free travel and common controls at the external borders.)

Then there is the Swiss model, marginally more independent. Switzerland concludes bilateral agreements with the European Union (including Schengen).

The drawback of both models is that the outsiders can mainly accept (or reject) what the European Union has cooked up. They can influence outcomes through consultation and lobbying, but they are not present when the EU institutions reach the internal outcomes.

In my opinion, Open Europe needs to do much more to indicate the course of action to take and to assess the consequences if Britain withdraws from the European Union, which would be the logical option considering its rejection of the basic treaty aims.


Dismantled EU

Open Europe’s other option is that the EU as a whole could be restructured to accommodate different members’ conflicting interests.

Apart from a minimum core of common rules, participation in EU policies should be voluntary. The less integrationist member states should not stop groups of other countries from pursuing deeper integration among themselves within the EU framework.

Countries would be allowed to opt in or out of: the common foreign and security policy; border control; justice and home affairs legislation; the CAP and CFP; cross-Europe emissions trading; external aid and other EU spending policies (e.g. on research). It would also mean allowing member states to take back control of regional aid and to repeal some legislation which is currently tacked inappropriately onto the internal market (like the Working Time Directive).


In my view, Open Europe’s view of the future European Union is incompatible with the aim to achieve ever closer union, under the existing treaties, as expressed by the timid reforms in the Treaty of Lisbon and especially with regard to the global challenges of the 21st century. Beyond the Lisbon Treaty, a unified foreign and security policy, including a future common defence, are prerequisites for Europe as an influential actor on the global stage. Effective powers require democratic government at EU level. Economic policy, resources (taxation) and some internal policies need to be strengthened.

But Open Europe’s vision of the dismantled European Union à-la-carte has one redeeming feature, worth further study.

Open Europe recognises that less integrationist countries should not stop (groups of) other countries from pursuing deeper integration within the EU framework. It does, however, raise a number of questions, which need to be addressed.

The European Union is based on international treaties, concluded between the member states, subject to unanimous agreement and ratification by all member states. The powers (competences) of the EU are laid down in these treaties, in some detail.

The enlarged European Union is almost impossible to reform, as shown by the painful road since the Nice summit in December 2000. The proposed reforms (Lisbon Treaty) are at the level of the least reform-minded countries.

Open Europe’s principles of unhindered progress and voluntary participation require new ground rules. In the near future, as long as intergovernmental conferences (with or without conventions) agree on treaty reform, a qualified majority of member states should be allowed to progress, as long as the minority is allowed to opt out of the policy area and future implementation.

It is hard to believe that anti-integrationist countries would abide by a promise to let the majority progress, or that future treaties would be ratified by all member states. Therefore, the European Union would have to agree on coming treaties entering into force among the ratifying states.

It is more natural that the minority opts out, than that the majority is forced to establish special procedures among itself, such as enhanced or permanent structured cooperation. The participating countries would constitute the Council with regard to each policy area. Governance would be messy, but somehow possible.

The supranational institutions of the European Union would, however, give rise to more serious questions. Should the MEPs of the opting-out nations be allowed to legislate on all matters, if their states of origin are exempt from duties pertaining to important policy areas? Should the fringe nations be given the same weight in the Commission, the Court of Justice, the consultative bodies and agencies?

On the other hand, after massive opt-outs some member states would be quick to demand lower contributions to the EU budget.

Open Europe needs to look closer at the implications of a European Union à-la-carte, if it wants to present it as a credible alternative.

Long term, the EU treaties need to be replaced by a basic law, which can be amended at EU level, by democratically legitimate institutions, by qualified majorities. How does Open Europe envision the situation of fringe countries in this context?



***

Open Europe has been consistently long on critique, but short on constructive proposals. It is high time to set out the alternatives for the United Kingdom (and perhaps some other member states) in much more detail, both secession and some sort of minimal membership, which would satisfy not only British preferences but the aspirations of the European mainstream.



Ralf Grahn

Disgraceful opt-out: EU Charter of Fundamental Rights

The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are said to be common to the member states. The EU shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the member states, as general principles of Community law.

This is the situation according to Article 6 of the existing Treaty on European Union (TEU).

The amending Treaty of Lisbon would be somewhat more specific about these principles (Article 2 TEU), and it would make the 2000 Charter of Fundamental Rights of the European Union (slightly adapted on 12 December 2007) legally binding. The European Union would also accede to the European Convention, already binding for every member state (Article 6 TEU).

***

Poland and the UK

During the negotiations leading to the Lisbon Treaty, two member states decided to break the European consensus on fundamental rights for all EU citizens.

Poland, with Jaroslaw Kaczynski as Prime Minister and Lech Kaczynski as President, feared that the EU Charter would leave Poland open to attacks by a homosexualist lobby. The socially conservative Kaczynski twins demand a Christian and Catholic Europe.

Poland opted out of the Charter, and despite the resounding election defeat of the ultra-conservative Law and Justice Party (PiS), the new Prime Minister Donald Tusk of the winning Civic Platform had no option but to swallow the opt-out in order to secure the needed super-majorities needed for the ratification of the Lisbon Treaty. (President Lech Kaczynski has still not signed the ratification instrument.)

The Labour governments of Tony Blair and Gordon Brown watered down the Lisbon Treaty, both generally and with regard to Britain. Fears of fundamental rights for British people led to a break with the civilized European nations in the form of an opt-out from the EU Charter. In the United Kingdom, a somewhat desultory discussion is taking place about a British Bill of Rights, a national document with less teeth.

The Conservative opposition leader David Cameron goes even further in his rejection of European mainstream values and politics.

What Cameron calls a progressive reform agenda includes a referendum on the Lisbon Treaty (leading to the revocation of the UK’s ratification if the Lisbon Treaty is not yet in force, or the end of Britain’s EU membership if the Lisbon Treaty is in force). In any case, the Tories have promised to renegotiate Britains relationship with Europe, repatriating at least social and employment legislation, requiring unanimous treaty amendments.

Cameron also wants a limited British Bill of Rights, redistributing power from judges.

This could only happen by extending the parliamentary discretion. It would not give power to the people, but potentially give them less legal protection. For this to happen, the coming government has to abolish or weaken the Human Rights Act and to revoke the European Human Rights Convention, taking Britain an additional step away from the community of civilized nations.

We begin to see some profound similarities between the Kaczynski twins and the Cameron-Hague tandem.

***

Symbolic value

The EU Charter is a fairly modern (mainly 2000) compilation of EU citizens’ rights, based on the European Convention and various rights under the EU treaties.

It does not create new rights for EU citizens, but the Charter makes them more visible and presents them in a systematic manner.

The Charters main function besides that is that it is an expression of a community of values, with the individual at its centre. Despite the underdeveloped political rights, the importance of the EU Charter is symbolic.

So is the rejection of these values.


***

Opt-out Protocol

Despite the legalese, every EU citizen, especially each British and Polish national, should be aware of this hall of shame (OJEU 9.5.2008 C 115/313-314):


PROTOCOL (No 30)
ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO POLAND AND TO THE UNITED KINGDOM


THE HIGH CONTRACTING PARTIES,

WHEREAS in Article 6 of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union,

WHEREAS the Charter is to be applied in strict accordance with the provisions of the aforementioned Article 6 and Title VII of the Charter itself,

WHEREAS the aforementioned Article 6 requires the Charter to be applied and interpreted by the courts of Poland and of the United Kingdom strictly in accordance with the explanations referred to in that Article,

WHEREAS the Charter contains both rights and principles,

WHEREAS the Charter contains both provisions which are civil and political in character and those which are economic and social in character,

WHEREAS the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles,

RECALLING the obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

NOTING the wish of Poland and the United Kingdom to clarify certain aspects of the application of the Charter,

DESIROUS therefore of clarifying the application of the Charter in relation to the laws and administrative action of Poland and of the United Kingdom and of its justiciability within Poland and within the United Kingdom,

REAFFIRMING that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter,

REAFFIRMING that this Protocol is without prejudice to the application of the Charter to other Member States,

REAFFIRMING that this Protocol is without prejudice to other obligations devolving upon Poland and the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:


Article 1

1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.

2. In particular, and for the avoidance of doubt, nothing in Title IV of the Charter creates justiciable rights applicable to Poland or the United Kingdom except in so far as Poland or the United Kingdom has provided for such rights in its national law.


Article 2

To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognized in the law or practices of Poland or of the United Kingdom.


***

These are opt-outs by those who fear legal protection for their citizens and willingly part company with the civilized nations of Europe.



Ralf Grahn

Monitoring the EU Charter of Fundamental Rights

The first Convention prepared the Charter of Fungamental Rights of the European Union, and it was solemnly adopted as politically binding at the European Council in Nice, in December 2000.

Later it was incorporated into the Treaty establishing a Constitution for Europe, as Part II, and published in the Official Journal of the European Union (OJEU) 16.12.2004 C 310.

When the ratification processes of the Constitutional Treaty had petered out, the Treaty of Lisbon proposed to make the Charter legally binding, but the text was published separately, OJEU 14.12.2007 C 303/1.

Cf. Article 6 of the amended Treaty on European Union, OJEU 9.5.2008 C 115/19.

In other words, the EU Charter of Fundamental Rights enters into force if the Lisbon Treaty does, but one should bear in mind that the United Kingdom and Poland opted out of the Charter. (The UK has embarked upon a disconnected exercise to craft a national Bill of Rights.)


The differences between the versions are small, so if you have no need for a certain version, it is convenient to use the latest one.

***

Monitoring

The Commission, which drafts legislative proposals, systematically check them against fundamental rights.

The Commission has now published an appraisal of its monitoring activities: The Report on the practical operation of the methodology for a systematic and rigorous monitoring of compliance with the Charter of Fundamental Rights (Brussels, 29.4.2009 COM(2009) 205 final).



The Commission stresses the growing importance of fundamental rights issues in the area of justice, freedom and security (page 3), and it names the so called asylum package as a case in point. The obligations are not only procedural, but substantive as well.

The Commission then goes on to discuss improvements to the monitoring process.

The Commission concludes by underlining the need to foster a fundamental rights culture and that the respect for fundamental rights must be a common goal of all the institutions involved in the legislative process.



Ralf Grahn

”Denmark’s EU opt-outs harmful”

Yesterday, Denmark’s new Prime Minister Lars Løkke Rasmussen speaking before the Danish Parliament (Folketinget) clearly stated that the EU opt-outs are harmful to the country’s interests. The Government will continue to work in order to abolish them. But he did not indicate when the time would be ripe.




Since 1993, Denmark has had four opt-outs covering defence policy, the Economic and Monetary Union (EMU), Union citizenship, and Justice and Home Affairs (JHA). The DIIS Summary on the Danish opt-outs is available here.



***

If opt-outs are harmful to Denmark, what about other EU member states with opt-outs?


Ralf Grahn

European Council President: Eliminating unwilling countries

The previous post looked at the dual membership of the European Union and NATO as a requirement for hopefuls (member states and candidates). In our opinion, due to their ambiguous relation to NATO and EU defence, Austria, Cyprus, Finland, Ireland, Malta and Sweden had disqualified themselves from filling the posts of President of the European Council and double-hatted High Representative.

I should have mentioned that Denmark has an opt-out in place concerning the common security and defence policy, although it is a NATO member.

***

We turn to other evolving core areas of the European Union.


Schengen agreement

The Schengen agreement abolishes border controls between the member states. Ireland and the United Kingdom have opted out.

(Bulgaria, Cyprus and Romania are not yet inside.)


***

Eurozone

Denmark and the United Kingdom have opted out of the common currency. Sweden has not bothered to join, despite its treaty obligation to adopt the euro.

(Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland and Romania have committed themselves to entry, but have not made it yet.)

***

Justice and home affairs

Ireland and the United Kingdom have opted out of police and judicial cooperation in criminal matters under the Treaty of Lisbon. Denmark has opted out of justice and home affairs (JHA) as well as EU citizenship (de iure).


***

EU Charter of Fundamental Rights.

Under the Treaty of Lisbon, the EU Charter of Fundamental Rights – politically binding since December 2000 – would become legally binding. Poland and the United Kingdom have opted out.


***

Lisbon Treaty

Let us use political ratification of the Treaty of Lisbon as a proxy for being in the European mainstream.

Ireland has voted no and the Czech Senate has not voted on the amending treaty. The Polish President has refused to sign, although the Parliament has approved the Lisbon Treaty.

(In Germany the Constitutional Court has not given its verdict, but the political ratification process is concluded.)

***

Summing up

If we strike the unwilling or negligent countries, we are left with the talent pool coming from 17 EU member states: Belgium, Bulgaria, Estonia, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, the Netherlands, Portugal, Romania, Slovakia, Slovenia and Spain.

By ratifying the Lisbon Treaty the Czech Republic might join before the elections to the top offices, but the opt-outs elsewhere seem to be more firmly rooted.

According to these criteria, the EU member states outside one or more core areas at this point are: Austria, Cyprus, the Czech Republic, Denmark, Finland, Ireland, Malta, Poland, Sweden and the United Kingdom.

***

Is it unreasonable to expect that the President of the European Council and the empowered High Representative come from member states engaged in all the core areas of EU policy (or committed to joining)?


Ralf Grahn

Gordon Brown’s European mainstream

“So I stand here, proud to be British and proud to be European, representing a country that does not see itself as an island adrift from Europe, but as a country at the centre of Europe, not in Europe’s slip-stream but in Europe’s mainstream.”

Thus spoke UK prime minister Gordon Brown to the European Parliament on 24 March 2009.

***

Europe’s mainstream?

Recent UK polls show very little recognition of a country where the population sees itself as in Europe’s mainstream or desiring to become part of it.

Even if Brown equated country and government, the statement is far from convincing.

***

The UK government (not least Brown himself) has fought an ongoing battle to thwart or limit treaty reform aimed at making the European Union more effective, democratic and solidary, and British government representatives miss few opportunities to hamper progress during daily Council work.

Currently the United Kingdom has opt-outs from two crucial areas of EU policy: the Schengen agreement abolishing border controls and the third stage of economic and monetary union (the euro).

Under the Treaty of Lisbon, the British opt-outs would be extended to two new areas: the EU Charter of Fundamental Rights as well as police and judicial cooperation in criminal matters.

In each case the United Kingdom belongs to a fraction of EU member states outside the common framework (although only 16 have made it into the Eurozone as yet).

If Brown rejects the idea of his country being in the slip-stream of Europe, how about describing it as forming a counter-current to progress?


Ralf Grahn

Eurozone: UK and Sweden

The United Kingdom seems to be moving so far off from qualifiying for euro adoption that I wonder how Commission President José Manuel Barroso even bothered to discuss the matter in public. The convergence criteria (analysed earlier on this blog) spell out decent government deficits and participation in the exchange rate mechanism without devaluation. If the rule of law continues to be upheld, Britain is beyond the pale for many years to come, even if the political leadership had a change of heart. Having promised a referendum, Labour is in no position to join the eurozone for internal reasons either, even if the political class wanted to jettison the Pound Sterling.

Britain has opted out of options.

***

Sweden is also outside the euro area, but without an opt-out. The Swedish Government did not bother to use the Lisbon Treaty negotiations to get one, but Sweden’s Government acts as if it had no obligation to adopt the euro currency.

Sweden’s updated convergence programme (Uppdatering av Sveriges konvergensprogram, November 2008) was published today:

http://www.regeringen.se/content/1/c6/11/66/99/b55c41d6.pdf

Despite the slide of the Swedish Crown, the tone of the Government is almost defiant (page 9):

“I september 2003 genomfördes en folkomröstning om Sverige skulle införa euron som valuta. Resultatet av folkomröstningen föranledde inga förändringar i penning- och valutapolitiken. Regeringen har ansvaret för övergripande valutapolitiska frågor och beslutar om växelkurssystemet medan Riksbanken ansvarar för tillämpningen av växelkurssystemet. Den nuvarande penning- och valutapolitiska regimen ligger fast. Sveriges erfarenheter av inflationsmål och rörlig växelkurs är mycket goda. En knytning av kronan till ERM2 är inte aktuell.”

In short, no change is in sight. Sweden does not contemplate joining the exchange rate mechanism (ERM II).

As long as the Commission continues to turn a blind eye, Sweden can flout the common rules.

***

There have been some reports that Iceland contemplates adopting the euro, but without EU membership. Iceland would also have to fulfil the Maastricht criteria, in itself a hard task given the present meltdown. But how would Iceland participate in the rudimentary economic governance within the euro group, to say nothing about other policy areas outside the current EEA deal?


Ralf Grahn

EU: Excessive government deficits VII

We have seen that the Commission could issue an opinion (“first warning”) directly to a member state. The Commission could also make a proposal concerning the existence of an excessive government deficit. But the crucial decision about recommendations to a “sinning” member state would still be made by the Council on a recommendation by the Commission.

In essence, the Treaty of Lisbon does not change much, but preserves the basic intergovernmental character of the excessive deficit procedure (as in the current Article 104 TEC and Constitution Article III-184), despite the foray attempted by the European Convention (draft Constitution Article III-76).

The Treaty on the Functioning of the European Union (TFEU) rewrites the rules on qualified majority voting.

***

This post adds some legal materials on the excessive deficit procedure.

***

Protocols and Declaration

A number of Protocols are annexed to the Lisbon Treaty. The intergovernmental conference adopted a number of Declarations annexed to the Final Act.


***

Protocol (No 12)

Protocol (No 12) on the excessive deficit procedure essentially reiterates the reference values (3 % of GDP deficit, 60 % of GDP debt) and other provisions of the existing Protocol. See the consolidated version of the Lisbon Treaty, in OJ 9.5.2008 C 115/279─280:

PROTOCOL (No 12)
ON THE EXCESSIVE DEFICIT PROCEDURE

THE HIGH CONTRACTING PARTIES,

DESIRING TO lay down the details of the excessive deficit procedure referred to in Article 126 of the Treaty on the Functioning of the European Union,

HAVE AGREED upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1
The reference values referred to in Article 126(2) of the Treaty on the Functioning of the European Union are:
— 3 % for the ratio of the planned or actual government deficit to gross domestic product at market prices;
— 60 % for the ratio of government debt to gross domestic product at market prices.

Article 2
In Article 126 of the said Treaty and in this Protocol:
— ‘government’ means general government, that is central government, regional or local government and social security funds, to the exclusion of commercial operations, as defined in the European System of Integrated Economic Accounts;
— ‘deficit’ means net borrowing as defined in the European System of Integrated Economic Accounts;
— ‘investment’ means gross fixed capital formation as defined in the European System of Integrated Economic Accounts;
— ‘debt’ means total gross debt at nominal value outstanding at the end of the year and consolidated between and within the sectors of general government as defined in the first indent.

Article 3
In order to ensure the effectiveness of the excessive deficit procedure, the governments of the Member States shall be responsible under this procedure for the deficits of general government as defined in the first indent of Article 2. The Member States shall ensure that national procedures in the budgetary area enable them to meet their obligations in this area deriving from these Treaties. The Member States shall report their planned and actual deficits and the levels of their debt promptly and regularly to the Commission.

Article 4
The statistical data to be used for the application of this Protocol shall be provided by the Commission.

***

United Kingdom: opt-out

The United Kingdom stays outside the Eurozone for the time being, but the opt-out Protocol, taken over by the Lisbon Treaty, contains two paragraphs (4 and 5) specifically relevant to the excessive deficit procedure. Cf. OJ 9.5.2008 C 115/284:

PROTOCOL (No 15)
ON CERTAIN PROVISIONS RELATING TO THE
UNITED KINGDOM OF GREAT BRITAIN AND
NORTHERN IRELAND

THE HIGH CONTRACTING PARTIES,

RECOGNISING that the United Kingdom shall not be obliged or committed to adopt the euro without a separate decision to do so by its government and parliament,

GIVEN that on 16 October 1996 and 30 October 1997 the United Kingdom government notified the Council of its intention not to participate in the third stage of economic and monetary union,

NOTING the practice of the government of the United Kingdom to fund its borrowing requirement by the sale of debt to the private sector,

HAVE AGREED upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

1. Unless the United Kingdom notifies the Council that it intends to adopt the euro, it shall be under no obligation to do so.

2. In view of the notice given to the Council by the United Kingdom government on 16 October 1996 and 30 October 1997, paragraphs 3 to 8 and 10 shall apply to the United Kingdom.

3. The United Kingdom shall retain its powers in the field of monetary policy according to national law.

4. Articles 119, second paragraph, 126(1), (9) and (11), 127(1) to (5), 128, 130, 131, 132, 133, 138, 140(3), 219, 282(2), with the exception of the first and last sentences thereof, 282(5), and 283 of the Treaty on the Functioning of the European Union shall not apply to the United Kingdom. The same applies to Article 121(2) of this Treaty as regards the adoption of the parts of the broad economic policy guidelines which concern the euro area generally. In these provisions references to the Union or the Member States shall not include the United Kingdom and references to national central banks shall not include the Bank of England.

5. The United Kingdom shall endeavour to avoid an excessive government deficit.

Articles 143 and 144 of the Treaty on the Functioning of the European Union shall continue to apply to the United Kingdom. Articles 134(4) and 142 shall apply to the United Kingdom as if it had a derogation.

-----

***

Denmark: opt-out

The Danish Protocol also carries forward existing Protocol text (with necessary updates). It does not mention the excessive deficit procedure specifically, but participation in the third stage of economic and monetary union (EMU). Still, I thought that it would be convenient for readers to be able to compare the British and Danish texts directly, as they appear in the consolidated Treaty of Lisbon. Source: OJ 9.5.2008 C 115/287:

PROTOCOL (No 16)
ON CERTAIN PROVISIONS RELATING TO DENMARK

THE HIGH CONTRACTING PARTIES,

TAKING INTO ACCOUNT that the Danish Constitution contains provisions which may imply a referendum in Denmark prior to Denmark renouncing its exemption,

GIVEN THAT, on 3 November 1993, the Danish Government notified the Council of its intention not to participate in the third stage of economic and monetary union,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

1. In view of the notice given to the Council by the Danish Government on 3 November 1993, Denmark shall have an exemption. The effect of the exemption shall be that all Articles and provisions of the Treaties and the Statute of the ESCB referring to a derogation shall be applicable to Denmark.

2. As for the abrogation of the exemption, the procedure referred to in Article 140 shall only be initiated at the request of Denmark.

3. In the event of abrogation of the exemption status, the provisions of this Protocol shall cease to apply.

***

Declaration 30

From derogationary exemptionalists we turn to the soothing sounds of the joint Declaration (30) on Article 126 TFEU. As far as I could see, it is a slavish copy of Declaration (17) on Article III-184 of the Constitutional Treaty, including the oblique references to strengthening and clarifying the implementation of the Stability and Growth Pact (since weakened and muddled by the ‘new’ Stability and Growth Pact). The new Declaration, too, promises not to prejudge the future debate on the Stability and Growth Pact, perhaps in anticipation of the financial crisis and economic downturn now upon us.

Source, the consolidated version of the Lisbon Treaty: OJ 9.5.2008 C 115/347─348:

30. Declaration on Article 126 of the Treaty on the Functioning of the European Union
With regard to Article 126, the Conference confirms that raising growth potential and securing sound budgetary positions are the two pillars of the economic and fiscal policy of the Union and the Member States. The Stability and Growth Pact is an important tool to achieve these goals.

The Conference reaffirms its commitment to the provisions concerning the Stability and Growth Pact as the framework for the coordination of budgetary policies in the Member States.

The Conference confirms that a rule-based system is the best guarantee for commitments to be enforced and for all Member States to be treated equally.

Within this framework, the Conference also reaffirms its commitment to the goals of the Lisbon Strategy: job creation, structural reforms, and social cohesion.

The Union aims at achieving balanced economic growth and price stability. Economic and budgetary policies thus need to set the right priorities towards economic reforms, innovation, competitiveness and strengthening of private investment and consumption in phases of weak economic growth. This should be reflected in the orientations of budgetary decisions at the national and Union level in particular through restructuring of public revenue and expenditure while respecting budgetary discipline in accordance with the Treaties and the Stability and Growth Pact.

Budgetary and economic challenges facing the Member States underline the importance of sound budgetary policy throughout the economic cycle.

The Conference agrees that Member States should use periods of economic recovery actively to consolidate public finances and improve their budgetary positions. The objective is to gradually achieve a budgetary surplus in good times which creates the necessary room to accommodate economic downturns and thus contribute to the long-term sustainability of public finances.

The Member States look forward to possible proposals of the Commission as well as further contributions of Member States with regard to strengthening and clarifying the implementation of the Stability and Growth Pact. The Member States will take all necessary measures to raise the growth potential of their economies. Improved economic policy coordination could support this objective. This Declaration does not prejudge the future debate on the Stability and Growth Pact.

***
Soon, we will start looking at the walking leg of economic and monetary union (EMU), Chapter 2 Monetary policy.


Ralf Grahn

European Union: Danish opt-outs

The Danish Institute for International Studies (DIIS) recently published a report ’De danske forbehold over den Europæiske Union: Udviklingen siden 2000’ (The Danish Opt Outs from the European Union: developments since 2000). Today the downloadable report has been published in book form, but for most international readers there is a handy four page executive summary in English:

http://www.diis.dk/graphics/Publications/Books2008/EU_udredningen_08/Preversion/EU08_Executive_Summary%28en%29.pdf

As an appetizer I quote from the summary:

“Since 1993, Denmark has had four opt-outs covering defence policy, the Economic and Monetary Union (EMU), Union citizenship, and Justice and Home Affairs (JHA). The opt-out for Union citizenship has no practical significance today, but in the three other areas the consequences now are considerably greater than they were in 2000. The Lisbon Treaty will further increase the significance of the Danish opt-outs, especially in relation to JHA.”

***

The report, commissioned by the Danish Parliament (Folketinget), has the following background:

Prime minister Anders Fogh Rasmussen’s government has planned to let the Danes vote on the abolishment of at least some of the opt-outs, seen as more of an obstacle than a help to Denmark.

But the Irish rejection of the Lisbon Treaty has lead to the postponement of these plans.

See, for instance Information.dk ‘Irsk nej truer afskaffelse af danske forbehold’ (Irish no delays abolishing Danish opt-outs), 14 June 2008:

http://www.information.dk/160827


Ralf Grahn

EU TFEU: Area of freedom, security and justice II

We continue to look at the introductory provision on the area of freedom, security and justice, Article 67 TFEU. The second part of this blawg article analyses the various stages of the treaty reform process and suggests some further reading.

***

When we compare the text of Article III-158 (presented in part I) and the following provisions of the draft Treaty establishing a Constitution for Europe with the current treaty provisions (se part I), we notice that the European Convention strived to abolish the present split between two pillars concerning justice and home affairs and to overhaul the disparate provisions into a readable whole.

The goal was to advance from intergovernmental bickering to somewhat more effective action, for which Article III-158 set the framework, although the subject matter is mentioned in the current treaty provisions.

Étienne de Poncins described the work of the Convention in the following words (Vers une Constitution européenne, Éditions 10/18, 2003; page 354):

« Commentaire : l’ensemble des dispositions relatives à l’espace de liberté, de sécurité et de justice ont été revues par la Convention et, plus particulièrement, par le groupe de travail X. La suppression de la structure en piliers a permis de regrouper l’ensemble des dispositions sous un même chapitre alors qu’elles sont aujourd’hui dispersées entre le traité de l’Union (TUE) et celui de la Communauté européenne (TCE). La définition de l’espace de liberté, de sécurité et de justice a été profondément revue et adaptée afin de rendre plus lisible l’action de l’Union dans ce domaine prioritaire. »

***

Article III-257 (presented in part I) of the Treaty establishing a Constitution for Europe took over the corresponding draft text with nothing more than minor editorial changes.

***

The IGC 2007 Mandate (Council document 11218/07) went into the justice and home affairs provisions in some detail (Part III ‘Amendments to the EC Treaty’, page 8, point 19):

---

h) Article 60 (freezing of assets to combat terrorism), as amended in the 2004 IGC, will be transferred towards the end of the Chapter on general provisions in the Title on the Area of freedom, security and justice.

---

j) In the Chapter on general provisions applying to the area of freedom, security and justice, insertion of a provision about cooperation and coordination by Member States in the field of national security (see point 2)(a) of Annex 2).

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

l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.

---

***

The IGC 2007 Mandate Annex 2 concerning amendments to the EC Treaty, with modifications compared with the results as agreed in the 2004 IGC, detailed the changes mentioned above (page 15-16). The asterisk indicated that the innovations to be inserted were the same as those agreed by the 2004 IGC:


2) Replacement, as agreed in the 2004 IGC, of Title IV with the provisions of a new Title on the area of freedom, security and justice*, which includes Chapter 1 (general provisions), Chapter 2 (policies on border checks, asylum and immigration), Chapter 3 (judicial cooperation in civil matters), Chapter 4 (judicial cooperation in criminal matters) and Chapter 5 (police cooperation).

(a) In Chapter 1 (general provisions), insertion in [Article III-262] of the following new second subparagraph:

"It shall be open to Member States to organize between themselves and under their responsibility forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security."

(b) In Chapter 3 (judicial cooperation in civil matters), replacement of paragraph 3 of [Article III-269] as follows:

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

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

The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the second subparagraph shall not be adopted. In the absence of opposition, the Council may adopt the decision."
.
(c) In Chapter 4 (judicial cooperation in criminal matters), replacement of, respectively, paragraphs 3 and 4 of [Article III-270] and of [Article III-271] by the following:

"3. Where a member of the Council considers that a draft directive as referred to in [paragraph 2 of III-270] [paragraphs 1 or 2 of III-271] would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."

(d) In Chapter 4 (judicial cooperation in criminal matters) and in Chapter 5 (police cooperation) insertion of the following new last subparagraphs, respectively, in paragraph 1 of [III-274] and in paragraph 3 of [Article III-275]:

"In case of absence of unanimity in the Council, a group of at least 9 Member States may request that the draft [regulation/measures] be referred to the European Council. In that case, the procedure in the Council shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council for adoption.

Within the same timeframe, in case of disagreement, and if at least 9 Member States wish to establish enhanced cooperation on the basis of the draft [regulation/measures] concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in [Articles I-44(2)] and [III-419(1)] shall be deemed to be granted and the provisions on enhanced cooperation shall apply."

[in III-275(3) only: "The specific procedure provided in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis."].

***

The area of freedom, security and justice is clearly strengthened by the Lisbon Treaty as one of the core policy areas of the European Union.

It is mentioned in the preamble to the amended Treaty on European Union:

“RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty and of the Treaty on the Functioning of the European Union”

It is mentioned among the principal aims of the Union, in 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.”

It is mentioned as a shared competence in Article 4(2)(j) TFEU.

It is the subject of the new and detailed TFEU Title V, comprising Articles 67 to 89 (plus various relevant provisions elsewhere).

***

What does the Treaty of Lisbon do?

The rough-and-ready description would be that Article 67 TFEU lays the groundwork for applying ‘Community’ principles to police and judicial cooperation along the lines of the Constitutional Treaty (and ultimately the European Convention).

But the devil is in the details:

Special limitations and procedures have been inserted by the IGC 2007. There are Protocols and Declarations to take into account.

Even with these complex limitations, the reform moves apply to most, but not to all member states: 24 out of 27.

Three member states – Denmark, Ireland and the United Kingdom – have opt-outs, underlining the impression of a multi-speed Europe.

***

Here are some suggestions for further reading on the area of freedom, security and justice:

For a readable presentation in English for the non-specialist, you could read the EU Reform Treaty White Paper of the government of Ireland, Chapter 9 ‘Freedom, Security and Justice’ (pages 66 to 72).

Professor Steve Peers has analysed the JHA provisions (Analysis no 1.3) for the Statewatch Observatory on the EU Constitution-Reform-Lisbon Treaty (as it is now called), with a packed three page introduction and a further section with highlighted changes and comments (21 pages in all).

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ describes the treaty proposals in section E. ‘Area of freedom, security and justice’ on pages 31 to 56.

The European Union Committee of the UK House of Lords pored over JHA affairs in Chapter 6 ‘Area of Freedom, Security and Justice’ in ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ from page 110 to page 177.

Sweden: The consultation paper (Green Paper) of the Swedish government describes the proposed changes in section 22.4 ‘Ett område med frihet, säkerhet och rättvisa’. Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48; page 295 to 330.

Finland: The ratification bill of the Finnish government (HE 23/2008 vp) contains an overview in section 3.2.4.2.2. ‘Vapauden, turvallisuuden ja oikeuden alue’ on pages 81–90. The same text is available in the Swedish version of the bill (RP 23/2008 rd).


***

Opt-outs

The 28 pages of ‘EU Reform Treaty Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’, by Steve Peers for Statewatch, advances from an introduction to the detail of adopted measures.

The UK Foreign and Commonwealth Office (FCO) web page ‘Myth and facts on justice and home affairs in the Lisbon Treaty’ gives an indication of the discordant British debate (but has not caught up with the latest wild allegations that the EU is reintroducing the death penalty):

http://www.fco.gov.uk/en/newsroom/latest-news/?view=News&id=1534108



Under the Treaty of Lisbon, Denmark would continue to have its four opt-outs, but in its positive ratification report the EU Committee of the Danish Parliament points to the possible referendum on abolishing the opt-out concerning justice and home affairs. Betaenkning over Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faellesskaber og Den Europaeiske Union (14. marts 2008, til lovforslag nr. L 53, s. 9):

http://www.euo.dk/upload/application/pdf/069fb9b9/20072L537.pdf

According to the Danish daily Politiken, prime minister Anders Fogh Rasmussen has spoken of a referendum later in the year on abolishing one or more Danish opt-outs:

http://politiken.dk/politik/article490778.ece

It is unclear how many opt-outs the Danes will get to vote on, but in any case it is going to happen after the imminent ratification of the Lisbon Treaty.


Ralf Grahn


EU Treaty sources:

If you want to know 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

EU TFEU: Customs cooperation

EU customs cooperation plays a key role in the fight against fraud and organised crime. We look at the current provision on customs cooperation and what the Lisbon Treaty brings to these activities within the European Union.

***

The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):

45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.

***

The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:

TITLE X
CUSTOMS COOPERATION

Article 135 TEC

Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.

***

The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):

Part Three Policies and internal actions of the Union

Title I The internal market

Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)

Article 27a TFEU (ToL), after renumbering Article 33 TFEU

Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.

***

We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):

Subsection 2
Customs cooperation

Article III-41 Draft Constitution

Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.

***

The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).

***

The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.

Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.

Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.

Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.

These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)

***

The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:

http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm

There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).

The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:

http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm

The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:

“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.

In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”

In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).

The Customs 2013 Programme consists of the following activities, according to Article 1(2):

(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.



Ralf Grahn

EU Lisbon Treaty ratification: Denmark

The Danish Parliament, Folketinget, has started its work on the ratification of the EU Treaty of Lisbon. The government bill can be downloaded freely:

Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratifikation af Lissabon-traktaten)
Lovforslag nr. L 53; 9. januar 2008
http://www.ft.dk/doc.aspx?/Samling/20072/lovforslag/L53/index.htm

***

After the signing of the Treaty of Lisbon, the Danish consolidated version of the Lisbon Treaty, mentioned in an earlier post, has been updated. For a free download, go to:

Folketinget: Sammenskrevet udgave af Lissabontraktaten, som undertegnet af EU’s stats- og regeringsledare den 13. december 2007, og det gaeldende traktatgrundlag;
http://www.euo.dk/upload/application/pdf/acc3e206/Lissabontraktaten.pdf

***

Folketingets EU-Oplysning, the Parliament’s EU Information Centre, offers information on the European Union in Danish, but some information is available in English, too:

http://www.eu-oplysningen.dk

***

The Reform Treaty is to be ratified by the Parliament of Denmark, but the government led by Anders Fogh Rasmussen is planning a referendum on the possible abolition of the Danish opt-outs from the EU Treaties.

Here is a part of the information on offer concerning Denmark’s opt-outs:

“Denmark has four so-called opt-outs from participation in EU policies.

As a result of the Danish no-vote to the Maastrich Treaty in 1992 the European Council adopted a declaration in Edinburg in December 1992 granting Denmark special status regarding EU cooperation. In order to meet the Danish concerns about the Maastricht Treaty Denmark was given four opt-outs from participation in EU policies:

Economic and Monetary Union: Denmark does not participate in the third phase of Economic and Monetary Union.

Common defence: Denmark does not participate in the elaboration and implementation of decisions and actions which have defence implications.

Justice and home affairs: Denmark only participates in EU judicial cooperation at an intergovernmental level.

Union citizenship: The Danish Opt-out on citizenship has been embodied in the Amsterdam Treaty, where it is stated, that union citizenship is a supplement to national citizenship and not a replacement.”



Ralf Grahn

EU Treaty of Lisbon: Fundamental Rights

Slowly but surely the people, the citizens of the European Union, emerge with legal rights and obligations.

The Charter of Fundamental Rights of the European Union was prepared by the first broadly based Convention, encompassing members of the European Parliament and national parliaments. At the summit in Nice, in December 2000, the member states were not yet unanimously ready to incorporate the Charter into the Treaty of Nice.

The Charter was jointly proclaimed by the European Parliament, the Council and the European Commission on 7 December 2000, and it became politically but not legally binding (OJ 18.12.2000, C 364/1).

The second Convention incorporated the Charter into the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 (OJ 16.12.2004, C 310/1), where it became Part II.

Since the Constitutional Treaty was not ratified by all member states, the Charter has continued to live on as a solemn political proclamation.

***

The intergovernmental conference (IGC 2007) decided, in line with its June mandate, to make the Charter legally binding without incorporating the text into the Reform Treaty, now called the Treaty of Lisbon.

One day before the signing of the Treaty of Lisbon, the Charter was solemnly proclaimed in Strasbourg by the European Parliament, the Council and the European Commission. The Charter of Fundamental Rights of the European Union has been published in the Official Journal of the European Union (OJ 14.12.2007, C 303/1) with the Explanations relating to the Charter of Fundamental Rights (C 303/17).

***

Since the solemn proclamation ceremony in Strasbourg was marred by unseemly protests in the European Parliament, it is appropriate to mention that the 27 member states’ governments and the European Commission have acted unanimously, and that the groupings against citizens’ rights had suffered a resounding defeat, 534 MEPs voting in favour of the Charter, 85 against and 21 abstentions.

This disgraceful tumult against the rights of EU citizens has been justly reprimanded, although friends of loutish behaviour have done their utmost to turn their soul buddies into champions of free speech for trying to disrupt a solemn and, for most Europeans, joyful occasion.

***

This is not the place for detailed analysis of the Charter, but a brief look at the headlines of the Articles gives an overview of the freedoms, rights and principles it contains:


TITLE I DIGNITY

Human dignity
Right to life
Right to the integrity of the person
Prohibition of torture and inhuman or degrading treatment or punishment
Prohibition of slavery and forced labour


TITLE II FREEDOMS

Right to liberty and security
Respect for private and family life
Protection of personal data
Right to marry and right to found a family
Freedom of thought, conscience and religion
Freedom of expression and information
Freedom of assembly and of association
Freedom of the arts and sciences
Right to education
Freedom to choose an occupation and right to engage in work
Freedom to conduct a business
Right to property
Right to asylum
Protection in the event of removal, expulsion or extradition


TITLE III EQUALITY

Equality before the law
Non-discrimination
Cultural, religious and linguistic diversity
Equality between women and men
The rights of the child
The rights of the elderly
Integration of persons with disabilities


TITLE IV SOLIDARITY

Workers’ right to information and consultation within the undertaking
Right of collective bargaining and action
Right of access to placement services
Protection in the event of unjustified dismissal
Fair and just working conditions
Prohibition of child labour and protection of young people at work
Family and professional life
Social security and social assistance
Health care
Access to services of general economic interest
Environmental protection
Consumer protection


TITLE V CITIZENS’ RIGHTS

Right to vote and to stand as a candidate at the elections to the European Parliament
Right to vote and to stand as a candidate at municipal elections
Right to good administration
Right of access to documents
European Ombudsman
Right to petition
Freedom of movement and of residence
Diplomatic and consular protection


TITLE VI JUSTICE

Right to an effective remedy and to a fair trial
Presumption of innocence and right of defence
Principles of legality and proportionality of criminal offences and penalties
Right not to be tried or punished twice in criminal proceedings for the same criminal offence


TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER

Field of application
Scope and interpretation of rights and principles
Level of protection
Prohibition of abuse of rights

***

Why is the Charter important?

Indeed, the Charter contains no new rights. They all exist in the EU Treaties, in the the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe) and various other human rights documents.

But bringing these various rights together, and making them visible for the citizens of the Union, is a manifestation of shared European values. The result is the most up to date legally binding human rights document on earth, and it offers the citizens a basis for scrutiny of EU institutions and member states when they implement European Union law.

The political rights of the Union’s citizens are still underdeveloped, but otherwise the Charter is a step towards recognition of the interests of the citizens as the foundation for the European project.
The Charter is a source of pride for the EU citizens, and it is going to be a source of reference for human rights in the world.

Naturally, the Charter would have been more visible if it had become a part of the Lisbon Treaty (and of future consolidated versions of the Treaty).

***

The European Union is given leave to accede to the European Convention for the Protection of Humans Rights and Fundamental Freedoms.

The constitutional traditions common to the Member States form part of the general principles of European Union law.

***

The Treaty of Lisbon (Official Journal of the European Union 17.12.2007, C 306/1) repeals Articles 4 and 5 of the Treaty on European Union (latest consolidated version OJ 29.12.2006, C 321 E/1). Consequently, the following Article is numbered 6, the present one being replaced by the following

Article 6

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

***

Unanimity among the member states’ governments has come at a price. The unity of EU law is diminished by the opt-outs of the governments of the United Kingdom and Poland.

See Protocol Number 7 on the application of the Charter of Fundamental Rights to Poland and the United Kingdom, as well as the Polish declarations 51 and 53 annexed to the Treaty of Lisbon.

The new Polish government has not been able to relinquish the opt-out, since it needs the support of the morally conservative opposition to ratify the Treaty of Lisbon. But the new government wants Poland to become a constructive force in EU politics, so a future renouncement of the opt-out seems to be hanging in the air.

That would leave Great Britain as the only member state fundamentally out of tune with mainstream European values on human rights.


Ralf Grahn