The EU Treaty of Lisbon gives the European Union the specific mandate to promote and support action of the member states in the field of crime prevention. The ordinary legislative procedure is going to apply, which means that legislation can become more effective, democratic and transparent than under current forms of intergovernmental cooperation.
***
Article 84 of the Treaty on the Functioning of the European Union (TFEU) allows EU measures to promote and support the action of member states in the field of crime prevention. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 84 TFEU
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The attentive reader notices that no further explanation was given about Article 69c. The IGC just presented the wording (as above; page 64) of Article 69c TFEU (ToL), which became Article 84 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
There is no directly corresponding provision in the current treaties.
Although there is no specific legal base on measures to prevent crime in the current treaties, we can refer to the objective to provide citizens with a high level of security, to be achieved by ‘preventing and combating crime’ (Article 29 TEU, as well as vaguely worded legal bases in Article 34 TEU). Article 61(e) TEC mentions ‘measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the Treaty on European Union’.
***
We now take a look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-173 Draft Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention. Such measures shall not include the approximation of Member States' legislative and regulatory provisions.
***
During the IGC 2004 Article III-271 of the Treaty establishing a Constitution for Europe underwent a few stylistic changes (OJ 16.12.2004 C 310/120):
Article III-272 Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
On this basis we conclude that the new provision was proposed by the European Convention, slightly re-worded by the IGC 2004 and finally adapted by the IGC 2007 to the terminology employed in the Treaty of Lisbon.
This preliminary conclusion can be checked simultaneously with the following resources on the contents of the Lisbon Treaty amendments.
***
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following explanation of what was to become Article 69c TFEU (ToL), Article 84 TFEU (page 17):
“There is no express legal base on this issue at present, but measures on crime prevention have been adopted as part of the EU’s criminal law funding programmes. The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Crime prevention’ (page 42), where it referred to one current treaty provision and explained the difference:
“Although Article 61(e) TEC currently provides that the Council shall adopt measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime, the new Article provides a legal base (not requiring unanimity) limited to incentive and supporting measures for the prevention of crime.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 84 TFEU, Article 69c TFEU (ToL) in the original Lisbon Treaty:
“New. Introduces a new legal basis for crime prevention measures by co-decision, excluding harmonisation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but let us turn to the general remarks of the Committee on the question ‘Are the Union’s competences extended by the Lisbon Treaty? (page 27):
“2.32. Defining the extent to which the Union’s competences are extended by the Lisbon Treaty is difficult. The Treaty includes new articles formally specifying new competences, but some of these largely confirm areas of competence in which the Union has already legislated on a different legal basis. Competence is also extended less visibly by amendments to preexisting articles, but again, the significance of such changes is debated.”
The Committee went on to mention the extensions of competence listed by the Minister for Europe, Jim Murphy MP, including ‘Crime prevention: new’, but I failed to find any further discussion about Article 84 TFEU in the report.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, offers a positive evaluation of crime prevention (pages 317–318):
“För att uppnå målet med frihet, säkerhet och rättvisa är det viktigt med ett effektivt brottsförebyggande arbete. Genom den särskilda artikel som nu förs in i EUF-fördraget (artikel 69c) ges unionen uttrycklig möjlighet att uppmuntra och stödja medlemmarna i detta arbete.”
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a detailed description of Article 69c TFEU (ToL), renumbered Article 84 TFEU on page 201.
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 203–204.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
All in all, the ‘new’ legal base for EU crime prevention measures brought about by the Treaty of Lisbon is new in its clarity and specificity, but not a real novelty when it comes to the scope for EU action.
The real change is that ‘Community’ procedures apply, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.
***
The interested reader can compare the special provision on promoting and supporting action for crime prevention with the general classification of EU competences in the Treaty of Lisbon.
Article 3 TFEU lists the areas of exclusive EU competence.
Article 4 TFEU lists the areas where competence is shared between the EU and the member states, with the area of freedom, security and justice mentioned in Article 4(2)(j).
Article 6 TFEU lists the areas where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states, but these larger ‘chunks’ do not mention crime prevention, although the special provision in Article 84 TFEU has many similar traits.
***
The reader who wants to explore what the European Union actually does in the field of crime prevention can start with the European Commission’s Justice and home affairs web page ‘Prevention of and Fight against Crime’(latest addition 29 April 2008):
http://ec.europa.eu/justice_home/funding/isec/funding_isec_en.htm
Ralf Grahn
Showing posts with label supporting action. Show all posts
Showing posts with label supporting action. Show all posts
Thursday, 8 May 2008
Thursday, 21 February 2008
EU TFEU: Support, coordinate and supplement
There are at least three kinds of changes to look out for, when we try to make sense of what the Treaty of Lisbon means for the European Union (EU):
1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?
2) When do the differences aim at better methodology or presentation?
3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?
The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.
You are offered an opportunity to test your own thinking, based on the following presentation.
***
The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:
Article 2e TFEU (ToL), after renumbering Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or complementary action. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, youth, sport and vocational training;
(f) civil protection;
(g) administrative cooperation.
***
The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).
***
The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):
Article I-16
Areas of supporting, coordinating or complementary action
1. The Union may take supporting, coordinating or complementary action.
2. The areas for supporting, coordinating or complementary action shall be, at European level:
— industry,
— protection and improvement of human health,
— education, vocational training, youth and sport,
— culture,
— civil protection.
3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.
***
There are some differences between the draft Constitution and the Constitution. Let us take a closer look.
If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.
Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:
Article 2a(5) TFEU (ToL)
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have
competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating
to these areas shall not entail harmonisation of Member States' laws or regulations.
***
The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.
Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?
The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
***
Existing areas
The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:
(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).
(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)
(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).
(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).
***
“Orphans”
Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.
These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:
Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).
Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.
***
New areas
Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).
Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).
***
If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).
***
We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.
Ralf Grahn
1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?
2) When do the differences aim at better methodology or presentation?
3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?
The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.
You are offered an opportunity to test your own thinking, based on the following presentation.
***
The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:
Article 2e TFEU (ToL), after renumbering Article 6 TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States. The areas of such action shall, at European level, be
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):
Article I-17
Areas of supporting, coordinating or complementary action
The Union shall have competence to carry out supporting, coordinating or complementary action. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, youth, sport and vocational training;
(f) civil protection;
(g) administrative cooperation.
***
The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).
***
The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):
Article I-16
Areas of supporting, coordinating or complementary action
1. The Union may take supporting, coordinating or complementary action.
2. The areas for supporting, coordinating or complementary action shall be, at European level:
— industry,
— protection and improvement of human health,
— education, vocational training, youth and sport,
— culture,
— civil protection.
3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.
***
There are some differences between the draft Constitution and the Constitution. Let us take a closer look.
If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.
Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:
Article 2a(5) TFEU (ToL)
5. In certain areas and under the conditions laid down in the Treaties, the Union shall have
competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.
Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating
to these areas shall not entail harmonisation of Member States' laws or regulations.
***
The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.
Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?
The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).
Article 3 TEC
1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:
(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;
(b) a common commercial policy;
(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;
(d) measures concerning the entry and movement of persons as provided for in Title IV;
(e) a common policy in the sphere of agriculture and fisheries;
(f) a common policy in the sphere of transport;
(g) a system ensuring that competition in the internal market is not distorted;
(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;
(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;
(j) a policy in the social sphere comprising a European Social Fund;
(k) the strengthening of economic and social cohesion;
(l) a policy in the sphere of the environment;
(m) the strengthening of the competitiveness of Community industry;
(n) the promotion of research and technological development;
(o) encouragement for the establishment and development of trans-European networks;
(p) a contribution to the attainment of a high level of health protection;
(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;
(r) a policy in the sphere of development cooperation;
(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;
(t) a contribution to the strengthening of consumer protection;
(u) measures in the spheres of energy, civil protection and tourism.
2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.
***
Existing areas
The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:
(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).
(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)
(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).
(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).
***
“Orphans”
Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.
These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:
Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).
Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.
***
New areas
Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).
Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).
***
If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).
***
We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.
Ralf Grahn
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