In an earlier Grahnlaw blog post House of Lords on EU Stockholm Programme (10 November 2009), ahead of the adoption of the Stockholm Programme, we highlighted the publication of:
UK House of Lords European Union Committee: The Stockholm Programme: home affairs (HL Paper 175; published 9 November 2009; 32 pages).
Since then, the Stockholm Programme has been adopted (document 17024/09 or 5731/10) and the proposed Action Programme COM(2010) 171 final for implementation has been published in three official EU languages. The Justice and Home Affairs (JHA) Council has issued its first conclusions on the Action Programme (8920/10).
Background note
Despite the peculiar status of the United Kingdom and these later developments, the report by the European Union Committee is worth reading as a guide to and background note on the home affairs issues within the EU’s emerging area of freedom, security and justice (FSJ).
The Introduction (page 5 to 6) offers a brief outline of the area of freedom, security and justice: the Treaty of Amsterdam (since 1999), the Tampere Programme (2000─2004), the Hague Programme (2005─2009) and the process leading towards the Stockholm Programme (2010─2014), as well as the effects of the entry into force of the Lisbon Treaty, which opens up new possibilities.
The European Union Committee rightly criticised the lack of public consultation, involvement and publicity of the Interior Future Group, which laid the foundations for the Stockholm Programme (page 6).
The House of Lords Committee noted the heavy weight of immigration and asylum matters ─ more than half of the initiatives ─ in its outline of priority issues in the Commission’s Communication (page 7).
The Commission wanted to see progress regarding other home affairs matters: data protection; the fight against organised crime, including improvement of methods for seizing the proceeds of crime; strengthening civil protection and critical infrastructure protection; the fight against terrorism, including a strategy for dealing with CBRN attacks (chemical, biological, radiological and nuclear) (page 8).
Like the UK Government, the HL European Union Committee was supportive of a five year programme, and it wanted to see early action on the proposals from the Commission (page 8).
Comment: Heavy on security, light on rights
Both the Stockholm Programme ─ An open and secure Europe serving and protecting citizens (document 5731/10) ─ and the proposed plan for implementation ─ Delivering an area of freedom, security and justice for Europe's citizens - Action Plan Implementing the Stockholm Programme; Brussels, 20.4.2010, COM(2010) 171 final ─ heavily stress citizens at headline level.
However, the HL Committee report indicates a heavy legacy of more effective repressive policy measures in the making, directed at illegal immigrants and failed asylum seekers, as well as (outside) plotters of terrorist acts.
Ever more draconian security measures tend to spill over unto EU citizens and legal migrants, and comparatively little seems to have emanated from fresh thoughts about the direct involvement and the extension of the legal ─ not to say political ─ rights of EU citizens.
Given the roots, is this the JHA agenda we need for the next five years?
Ralf Grahn
Showing posts with label terrorism. Show all posts
Showing posts with label terrorism. Show all posts
Tuesday, 27 April 2010
Thursday, 28 January 2010
Growing opposition against EU-USA SWIFT or TFTP agreement
Active opposition against the so called SWIFT agreement on the rendition of financial data from the European Union to the United States of America seems to be growing among experts, in the European Parliament and beyond.
One the one hand, there is the interim TFTP agreement the member states’ governments (Council) wanted to enter into force on 1 February 2010, without burdening the European Parliament with scrutiny. On the other hand, there are plans for a long term agreement, but the Council has been less than zealous in engaging the European Parliament.
Members of the EP Committee on Civil Liberties, Justice and Home Affairs (LIBE) have not taken the combination of pressure secrecy from the Council and the European Commission kindly, as seen in SWIFT interim agreement: Civil liberties Committee to vote on 4 February (27 January 2010).
The procedure file NLE/2009/0190 EU/USA agreement: processing and transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Program on Oeil, the Legislative Observatory of the European Parliament, tells us the basic facts about the existing documents:
1) COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program (document 16110/09), meant to enter into force provisionally from 1 February and remaining in force until 31 October 2010. This interim agreement has been published in the Official Journal of the European Union as Council Decision 2010/16/CFSP/JHA, OJEU 13.1.2010 L 8/9 & 11.
2) The previous initial legislative document contains the Commission’s proposal on the conclusion of the TFTP Agreement; 17 December 2009; COM(2009)0703 final.
3) COUNCIL DECISION on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; dated 20 January 2010; Council document 5305/10. The meaning of the document is somewhat unclear. Is it a belated attempt by the Council to ask for the consent of the European Parliament with regard to the interim agreement after the entry into force of the Lisbon Treaty? Or is it meant to cover the planned long term agreement? Anyway, the “attached” substance of the agreement is missing.
LIBE
The LIBE Committee has been doing what such parliamentary committees are supposed to do: gathering information about the impact of the TFTP Agreement on fundamental rights of EU citizens.
The Article 29 Data Protection Working Party (Working Party on Police and Justice) has expressed concerns on data protection grounds.
The European Data Protection Supervisor considers that not enough elements have been provided so far to justify the necessity and proportionality of such a privacy-intrusive [TFTP] agreement, which in many aspects overlaps with already existing EU and international instruments in this area.
Political reactions
Given the evidence, political reactions have continued, but they have also become sharper.
In December 2009 the liberal group ALDE pushed for an agreement with the other political groups on two conditions for EP approval: that Parliament has full access to all relevant documents and information connected to the SWIFT agreement and that Council's negotiating mandate for the longer-term agreement, to replace this interim agreement expiring by 31 October 2010, fully reflect Parliament' stated concerns in its resolution of September; in Parliament sets conditions for granting consent to SWIFT agreement (17 December 2009).
Practically all the political groups expressed concerns and conditions during the EP’s SWIFT debate on 20 January 2010.
The Greens-EFA parliamentary group has opted for rejection of the SWIFT agreement as a breach of fundamental rights, quoting home affairs spokesman Jan-Philipp Albrecht: EU-US SWIFT bank data agreement: Parliament must stop Council in its tracks (27 January 2010).
The Pirate Party is going to vote for rejection of the SWIFT Agreement in the European Parliament, says Henrik Alexandersson, who posts a press release (in Swedish): Piratpartiet röstar nej till SWIFT-avtalet (28 January 2010).
Euroblogs
Netzpolitik.org (in German) has been keeping a close watch on the SWIFT agreement process. Recommended reading.
Piratpartiet live has aggregated a number of blog posts opposing the SWIFT agreement (mostly in Swedish). Here are but two examples:
Maloki says no to the SWIFT Agreement: Nej till SWIFT-avtalet! (28 January 2010).
Anna Troberg: Piratpartiet säger nej till SWIFT-avtalet (28 January 2010).
Ralf Grahn
P.S. Cross-border communication is a necessity in the European Union, with scrutiny by active citizens. At the same time Euroblogs are an agreeable way to brush up one’s skills in foreign languages.
Even when discussing French political and legal events, Diner’s room retains a European and human perspective well worth consideration beyond the borders of France.
Diner’s room (in French) is listed among 522 great Euroblogs (at the latest count) on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.
If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
One the one hand, there is the interim TFTP agreement the member states’ governments (Council) wanted to enter into force on 1 February 2010, without burdening the European Parliament with scrutiny. On the other hand, there are plans for a long term agreement, but the Council has been less than zealous in engaging the European Parliament.
Members of the EP Committee on Civil Liberties, Justice and Home Affairs (LIBE) have not taken the combination of pressure secrecy from the Council and the European Commission kindly, as seen in SWIFT interim agreement: Civil liberties Committee to vote on 4 February (27 January 2010).
The procedure file NLE/2009/0190 EU/USA agreement: processing and transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Program on Oeil, the Legislative Observatory of the European Parliament, tells us the basic facts about the existing documents:
1) COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program (document 16110/09), meant to enter into force provisionally from 1 February and remaining in force until 31 October 2010. This interim agreement has been published in the Official Journal of the European Union as Council Decision 2010/16/CFSP/JHA, OJEU 13.1.2010 L 8/9 & 11.
2) The previous initial legislative document contains the Commission’s proposal on the conclusion of the TFTP Agreement; 17 December 2009; COM(2009)0703 final.
3) COUNCIL DECISION on the conclusion of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; dated 20 January 2010; Council document 5305/10. The meaning of the document is somewhat unclear. Is it a belated attempt by the Council to ask for the consent of the European Parliament with regard to the interim agreement after the entry into force of the Lisbon Treaty? Or is it meant to cover the planned long term agreement? Anyway, the “attached” substance of the agreement is missing.
LIBE
The LIBE Committee has been doing what such parliamentary committees are supposed to do: gathering information about the impact of the TFTP Agreement on fundamental rights of EU citizens.
The Article 29 Data Protection Working Party (Working Party on Police and Justice) has expressed concerns on data protection grounds.
The European Data Protection Supervisor considers that not enough elements have been provided so far to justify the necessity and proportionality of such a privacy-intrusive [TFTP] agreement, which in many aspects overlaps with already existing EU and international instruments in this area.
Political reactions
Given the evidence, political reactions have continued, but they have also become sharper.
In December 2009 the liberal group ALDE pushed for an agreement with the other political groups on two conditions for EP approval: that Parliament has full access to all relevant documents and information connected to the SWIFT agreement and that Council's negotiating mandate for the longer-term agreement, to replace this interim agreement expiring by 31 October 2010, fully reflect Parliament' stated concerns in its resolution of September; in Parliament sets conditions for granting consent to SWIFT agreement (17 December 2009).
Practically all the political groups expressed concerns and conditions during the EP’s SWIFT debate on 20 January 2010.
The Greens-EFA parliamentary group has opted for rejection of the SWIFT agreement as a breach of fundamental rights, quoting home affairs spokesman Jan-Philipp Albrecht: EU-US SWIFT bank data agreement: Parliament must stop Council in its tracks (27 January 2010).
The Pirate Party is going to vote for rejection of the SWIFT Agreement in the European Parliament, says Henrik Alexandersson, who posts a press release (in Swedish): Piratpartiet röstar nej till SWIFT-avtalet (28 January 2010).
Euroblogs
Netzpolitik.org (in German) has been keeping a close watch on the SWIFT agreement process. Recommended reading.
Piratpartiet live has aggregated a number of blog posts opposing the SWIFT agreement (mostly in Swedish). Here are but two examples:
Maloki says no to the SWIFT Agreement: Nej till SWIFT-avtalet! (28 January 2010).
Anna Troberg: Piratpartiet säger nej till SWIFT-avtalet (28 January 2010).
Ralf Grahn
P.S. Cross-border communication is a necessity in the European Union, with scrutiny by active citizens. At the same time Euroblogs are an agreeable way to brush up one’s skills in foreign languages.
Even when discussing French political and legal events, Diner’s room retains a European and human perspective well worth consideration beyond the borders of France.
Diner’s room (in French) is listed among 522 great Euroblogs (at the latest count) on growing multilingual Bloggingportal.eu, your useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, more than thirty policy areas, communication, economics, finance, business, civil society and law.
If you are interested in the EU or the euroblogosphere, you can also subscribe to the RSS feed for new blog posts appearing on Bloggingportal.eu.
By the way, I also discuss European issues in Finnish on Eurooppaoikeus and in Swedish on Grahnblawg.
Tuesday, 19 January 2010
Puzzling EP action over EU-USA bank data deal?
What is happening between the European Parliament and the Council? I have to admit that I was puzzled, even shocked when I saw that the EP is threatening the EU Council with political blackmail.
EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).
The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.
Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.
The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:
COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.
This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.
The annexed contents of the TFTP / SWIFT Agreement were here.
Parliament v Council
The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).
The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).
Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.
The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.
On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.
The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.
If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.
At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.
The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:
Ralf Grahn
P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.
By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.
EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).
The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.
Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.
The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:
COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.
This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.
The annexed contents of the TFTP / SWIFT Agreement were here.
Parliament v Council
The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).
The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).
Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.
The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.
On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.
The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.
If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.
At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.
The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:
Recalls its determination to fight terrorism and its firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection; reaffirms that necessity and proportionality are key principles without which the fight against terrorism will never be effective.
Ralf Grahn
P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.
By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.
Wednesday, 13 January 2010
EU USA SWIFT or TFTP Agreement officially published
Late November 2009 we wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.
The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement has now been officially published:
COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.
This contains the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.
The annexed contents of the SWIFT Agreement are here:
AGREEMENT between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; OJEU 13.1.2010 L 8/11.
The TFTP Agreement is in force until 31 October 2010, but the parties have undertaken to negotiate for a long-term agreement (Article 15).
Ralf Grahn
P.S. Matizandrea’s Blog (in Italian) is an active and knowledgeable participant in the European blogosphere. Matizandrea’s Blog is listed together with more than 500 great euroblogs on multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, economics, finance and law.
By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.
The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement has now been officially published:
COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.
This contains the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.
The annexed contents of the SWIFT Agreement are here:
AGREEMENT between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; OJEU 13.1.2010 L 8/11.
The TFTP Agreement is in force until 31 October 2010, but the parties have undertaken to negotiate for a long-term agreement (Article 15).
Ralf Grahn
P.S. Matizandrea’s Blog (in Italian) is an active and knowledgeable participant in the European blogosphere. Matizandrea’s Blog is listed together with more than 500 great euroblogs on multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, economics, finance and law.
By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.
Tuesday, 1 December 2009
EU-USA SWIFT & TFTP agreement materials
The home affairs part of the Justice and EU Home Affairs Council 30 November 2009 contains the following conclusions on the approved EU-US agreement on financial messaging data for counterterrorism investigations (document 16883/09; page 11):
***
Council decision
This time the Council published a reference (and link) to the relevant document (16110/09; 26 pages): COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program.
It contains the decision, a declaration and the agreement comprising 15 Articles, so some improvement has been made under the Swedish Council presidency.
It is now possible to discuss the issue on the basis of the final text of the agreement. Better late than never (despite the earlier, leaked versions).
Ralf Grahn
P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page or concentrate on the editors’ choice of articles on the Home page. On most of the blogs you can comment and discuss our common European future.
EU-US AGREEMENT ON FINANCIAL MESSAGING DATA FOR COUNTERTERRORISM
INVESTIGATIONS
The Council adopted an EU-US agreement on the processing and transfer of financial messaging data for purposes of the US Terrorist Finance Tracking Programme (TFTP 16110/09). It also adopted two political declarations on the subject.
The agreement aims to continue to allow the US Department of the Treasury to receive European financial messaging data for counter-terrorism investigations, while ensuring an adequate level of data protection. Requests by the US have to be verified by the competent authority of the relevant EU member states, they have to substantiate the necessity for the data and they have to be tailored as narrowly as possible. The agreement also provides for a joint review procedure, redress possibilities as well as a suspension clause.
The agreement is temporary. It will be provisionally applied as from 1 February 2010 and expire on 31 October 2010, at the latest. The European Parliament must consent to the formal conclusion of this temporary agreement in the coming months.
Any long-term agreement for the time after 31 October 2010 must be negotiated and concluded under the rules of the Treaty of Lisbon. These provide that the European Parliament must be fully informed at all stages of the negotiations and must give its consent to the formal conclusion of an agreement.
Concerning that follow-up agreement for the time after 31 October 2010, a Council declaration calls upon the Commission to submit as soon as possible, and at any rate no later than February 2010, a recommendation to the Council for the negotiation of a long-term agreement. It also states that the current agreement is without prejudice to any provisions in that long-term agreement.
In a second declaration, the Council and the Commission commit themselves to the Lisbon rules, i.e. to inform the Parliament immediately and fully at all stages during negotiations.
The negotiations on the provisional agreement adopted today, started in July 2009 and responded to a decision by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) to store its European financial messaging data no longer in a database located in the US, but only in Europe.
Under the Terrorist Finance Tracking Programme (TFTP), the US Department of the Treasury seeks to identify, track and pursue suspected terrorists and their providers of finance. It was set up shortly after the terrorist attacks of 11 September 2001. Relevant results of the US analysis have been and will continue to be shared with EU member states. A report by the former French investigating judge Jean-Luis Brugiere, commissioned by the Commission, concluded in December 2008 that the TFTP had generated considerable intelligence value also to the EU member states.
***
Council decision
This time the Council published a reference (and link) to the relevant document (16110/09; 26 pages): COUNCIL DECISION on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program.
It contains the decision, a declaration and the agreement comprising 15 Articles, so some improvement has been made under the Swedish Council presidency.
It is now possible to discuss the issue on the basis of the final text of the agreement. Better late than never (despite the earlier, leaked versions).
Ralf Grahn
P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page or concentrate on the editors’ choice of articles on the Home page. On most of the blogs you can comment and discuss our common European future.
Monday, 30 November 2009
Council publishes Questions and Answers on EU-US SWIFT agreement
The Council of the European Union has published a five page document with questions and answers on the so called SWIFT agreement on the US Terrorist Finance Tracking Programme (TFTP), concluded for nine months one day before the Lisbon Treaty enters into force.
Ralf Grahn
P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page or concentrate on the editors’ choice of articles on the Home page. On most of the blogs you can comment and discuss our common European future.
Ralf Grahn
P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts on the Posts page or concentrate on the editors’ choice of articles on the Home page. On most of the blogs you can comment and discuss our common European future.
Saturday, 28 November 2009
EU & USA: SWIFT agreement ─ Sweden “informs”
Yesterday, in the blog post SWIFTly signed – Long term damage? (Updated), I criticised the Swedish EU Council presidency for acting against its proclaimed principles of openness, transparency and accessibility with regard to the proposed bank data transfer deal with the United States of America.
Important as the fight against terrorism is, expediency should not override democratic scrutiny and open debate, when fundamental rights are at stake.
Have matters improved since early Friday afternoon?
Actually, Friday brought some improvements, but left the fate of the SWIFT agreement between the EU and the US hanging in the air.
Presidency and Council information
During Friday, the Swedish presidency of the Council of the European Union published information about the Council meeting Monday 30 November 2009, Justice and Home Affairs configuration: Stockholm Programme and work to combat human trafficking at Council meeting. The general press release highlights “some of the issues”, but not the SWIFT agreement.
The provisional agenda of the JHA Council meeting (dated 13 November 2009; document CM 4735/09) still mentions the bank data transfer agreement, without any reference to documents of substantive value:
Understandably, the short pre-meeting video with ambassador Christian Danielsson on preparation in Coreper II concentrates on the strategically important five year Stockholm Programme, which covers the whole of the evolving area of freedom, security and justice, but the interview makes no mention of the SWIFT deal.
The Background note on the Justice and Home Affairs Council 30 November to 1 December 2009, by the Council Press service (dated 27 November 2009), breaks the silence by mentioning the US agreement among the highlighted questions (front page):
Under Home Affairs (Monday, 30 November), the background note presents the following general information about the financial data transfer agreement (page 5):
***
Where do we stand?
We note that the background note Friday says “discuss a draft”, not “sign” or “approve”. Does this mean that concluding the agreement is off the agenda Monday, and that the governments are going to give the EU’s data protection rules and parliamentary procedures some serious thought?
We also note that the information on offer – although a huge improvement on past practice – is bland, incomplete and one-sided. Privacy, data protection or fundamental rights are not mentioned, but valuable intelligence is. There are no documentary references to enlighten debate.
The SWIFT agreement is not among the issues debated publicly on the JHA webcast Monday 30 November 2009.
The fight against terrorism is too important to spoil by shady dealings and sowing mistrust in an EU on the threshold of becoming a union, “in which decisions are taken as openly as possible and as closely as possible to the citizen”.
Admittedly, proceedings behind closed doors have created a problem with the end of the year approaching fast. Still, I am reasonably optimistic that, given the opportunity, the European Parliament would do its bit to look for temporary solution if the Council agrees to trust our system of representative democracy.
Ralf Grahn
P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts or concentrate on the editors’ choice. On most of the blogs you can comment and discuss our common European future.
Important as the fight against terrorism is, expediency should not override democratic scrutiny and open debate, when fundamental rights are at stake.
Have matters improved since early Friday afternoon?
Actually, Friday brought some improvements, but left the fate of the SWIFT agreement between the EU and the US hanging in the air.
Presidency and Council information
During Friday, the Swedish presidency of the Council of the European Union published information about the Council meeting Monday 30 November 2009, Justice and Home Affairs configuration: Stockholm Programme and work to combat human trafficking at Council meeting. The general press release highlights “some of the issues”, but not the SWIFT agreement.
The provisional agenda of the JHA Council meeting (dated 13 November 2009; document CM 4735/09) still mentions the bank data transfer agreement, without any reference to documents of substantive value:
“Council Decision authorising the signing of an Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data for purposes of the Terrorist Finance Tracking Programme
- Adoption”
Understandably, the short pre-meeting video with ambassador Christian Danielsson on preparation in Coreper II concentrates on the strategically important five year Stockholm Programme, which covers the whole of the evolving area of freedom, security and justice, but the interview makes no mention of the SWIFT deal.
The Background note on the Justice and Home Affairs Council 30 November to 1 December 2009, by the Council Press service (dated 27 November 2009), breaks the silence by mentioning the US agreement among the highlighted questions (front page):
“Ministers will also discuss a draft EU-US agreement on financial messaging data for counterterrorism investigations.”
Under Home Affairs (Monday, 30 November), the background note presents the following general information about the financial data transfer agreement (page 5):
“EU-US agreement on financial messaging data for counter-terrorism investigations
The Council will discuss an EU-US agreement on the processing and transfer of financial messaging data for purposes of the US Terrorist Finance Tracking Programme (TFTP).
The negotiations on the agreement started in July 2009 and responded to a decision by the Society for Worldwide Interbank Financial Telecommunication (SWIFT) to store its European financial messaging data no longer in a database located in the US, but only in Europe. The agreement aims to continue to allow the US Department of the Treasury to receive European financial messaging data for counter-terrorism investigations, while ensuring an adequate level of data protection.
Under the Terrorist Finance Tracking Programme (TFTP), the US Department of the Treasury seeks to identify, track and pursue suspected terrorists and their providers of finance. It was set up shortly after the terrorist attacks of 11 September 2001.
Relevant results of the US analysis have been and will, under the draft agreement, continue to be shared with EU member states. A report by the former French investigating judge Jean-Luis Brugière, commissioned by the Commission, concluded in December 2008 that the TFTP had generated considerable intelligence value also to the EU member states.
SWIFT is a Belgium-based company which operates a worldwide messaging system used to transmit, inter alia, bank transaction information. It has been estimated that SWIFT handles 80% of the worldwide traffic for electronic value transfers.”
***
Where do we stand?
We note that the background note Friday says “discuss a draft”, not “sign” or “approve”. Does this mean that concluding the agreement is off the agenda Monday, and that the governments are going to give the EU’s data protection rules and parliamentary procedures some serious thought?
We also note that the information on offer – although a huge improvement on past practice – is bland, incomplete and one-sided. Privacy, data protection or fundamental rights are not mentioned, but valuable intelligence is. There are no documentary references to enlighten debate.
The SWIFT agreement is not among the issues debated publicly on the JHA webcast Monday 30 November 2009.
The fight against terrorism is too important to spoil by shady dealings and sowing mistrust in an EU on the threshold of becoming a union, “in which decisions are taken as openly as possible and as closely as possible to the citizen”.
Admittedly, proceedings behind closed doors have created a problem with the end of the year approaching fast. Still, I am reasonably optimistic that, given the opportunity, the European Parliament would do its bit to look for temporary solution if the Council agrees to trust our system of representative democracy.
Ralf Grahn
P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! There are already 487 Euroblogs aggregated on multilingual Bloggingportal.eu. You can access all the posts or concentrate on the editors’ choice. On most of the blogs you can comment and discuss our common European future.
Tuesday, 10 February 2009
EU Law: Solidarity clause
Solidarity is the mortar of the European construction work. The Lisbon Treaty’s solidarity clause would strengthen the ties between member states and citizens of the European Union.
***
Original Lisbon Treaty
Article 2, point 176 of the original Treaty of Lisbon (ToL) inserts a new Title VII Solidarity clause into Part Five External action by the Union as well as a new Article 188r (OJEU 17.12.2007 C 306/100─101):
SOLIDARITY CLAUSE
176) The following new Title VII and new Article 188 R shall be inserted:
‘TITLE VII
SOLIDARITY CLAUSE
Article 188 R
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 15b(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 207, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 61 D; the two committees shall, if necessary, submit joint opinions.
4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.’.
***
Consolidated Lisbon Treaty
Article 188r is renumbered Article 222 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated version of the amending treaties. The references to provisions referred to are renumbered as well (OJEU 9.5.2008 C 115/148):
TITLE VII
SOLIDARITY CLAUSE
Article 222 TFEU
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.
4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.
***
Comment
Solidarity was described as the mortar of European integration in the blog post on civil protection, and Article 222 TFEU can be read in conjunction with Article 196 TFEU.
***
The solidarity clause was introduced by the European Convention in two parts. Article I-42 of the draft Constitution was named the Solidarity clause and it was situated in Chapter II Specific provisions under Title V Exercise of Union competence in the ‘constitutional’ part of the draft. Article III-231 came under the Chapter VIII headline Implementation of the solidarity clause. The proposal within the Convention came from the working group on defence.
The corresponding provisions in the Constitutional Treaty were Articles I-43 and III-329.
The Lisbon Treaty Article 222 TFEU merges the two provisions, but the amending treaty lifted out the general provisions, the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) provisions from the (coming) TFEU into the Treaty on European Union (TEU), leaving the solidarity clause Article 222 TFEU somewhat lonely in the context of external action by the Union (Part Five). Perhaps the location has become less constitutional in concept.
***
Anyway, the solidarity clause is not the only manifestation of solidarity in the Treaty of Lisbon. Here are a few examples:
In the TEU Preamble the Heads of State desire to deepen the solidarity between their peoples while respecting their history, their culture and their traditions.
Article 2 TEU mentions solidarity among the founding values of the European Union, common to the member states.
According to Article 3(3) TEU the European Union shall promote economic, social and territorial cohesion, and solidarity among member states.
Article 24(2) TEU, within the framework of the principles and objectives of its external action, mandates the European Union to conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.
In Article 24(3) TEU the member states undertake to support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and to comply with the Union's action in this area. The provision continues with the obligation for the member states to work together to enhance and develop their mutual political solidarity and to refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations (loyal cooperation).
Member states have an obligation of aid and assistance if a member state is the victim of armed aggression on its territory, according to Article 42(7) TEU.
In the context of the area of freedom, security and justice, the a common policy on asylum, immigration and external border control is based on solidarity between member states (Article 67(2) TFEU). Article 80 repeats the principles of solidarity and fair sharing in the Chapter on border checks, asylum and immigration.
Under economic policy, pursuant to Article 122 TFEU, the Council can decide , in a spirit of solidarity between Member States, upon measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.
The objectives of the European Union’s energy policy are expressed in a spirit of solidarity between member states (Aricle 194 TFEU). One fresh assessment of reality comes from the former executive director of the International Energy Agency Claude Mandil in an interview for EurActiv: “Several EU governments did not show solidarity over the recent gas crisis.”
Read the interview at:
http://www.euractiv.com/en/energy/energy-solidarity-just-words-iea-chief/article-179261
***
It looks like progress is being made, at least if the Lisbon Treaty enters into force, but the ‘de facto’ solidarity evoked by Robert Schuman has been long in coming and it is still very much an ongoing work.
***
Article 222 TFEU covers two groups of threats: 1) from terrorists, and 2) natural or man-made disasters.
***
The member states have an obligation to assist, if requested to do so.
The foundations for effective action are less unambiguous.
The member states coordinae between themselves in the Council. Unanimity is required if the decision has defence implications (Article 31(1) TEU).
The Council takes the implementing decisions on a joint proposal by the Commission and the High Representative.
Declaration 37 on Article 222 of the Treaty on the Functioning of the European Union adds the sobering thought that none of the provisions of Article 222 is intended to affect the right of another member state to choose the most appropriate means to comply with its own solidarity obligation towards that member state. ─ Far from a rock-hard guarantee.
Without stepping on the toes of the Committee of the Permanent Representatives of the Member States (Coreper; Article 240 TFEU), the intergovernmental (Council) Political and Security Committee shall assist the Council. It is supported by the structures developed in the context of the common security and defence policy and by the Internal Security Committee (referred to in Article 71 TFEU).
***
Politically in force
Following the vicious terrorist attacks in Madrid 11 March 2004, the Heads of State or Government of the Member States of the European Union, and of the States acceding to the Union on 1 May, declared their firm intention to act in the spirit of the solidarity clause laid down in Article 42 of the draft Treaty establishing a Constitution for Europe, and to act jointly in a spirit of solidarity if one of them is the victim of a terrorist attack, by mobilising all the instruments at their disposal, including military resources (European Council, Declaration on solidarity against terrorism, 25 March 2004).
Ralf Grahn
***
Original Lisbon Treaty
Article 2, point 176 of the original Treaty of Lisbon (ToL) inserts a new Title VII Solidarity clause into Part Five External action by the Union as well as a new Article 188r (OJEU 17.12.2007 C 306/100─101):
SOLIDARITY CLAUSE
176) The following new Title VII and new Article 188 R shall be inserted:
‘TITLE VII
SOLIDARITY CLAUSE
Article 188 R
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 15b(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 207, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 61 D; the two committees shall, if necessary, submit joint opinions.
4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.’.
***
Consolidated Lisbon Treaty
Article 188r is renumbered Article 222 of the Treaty on the Functioning of the European Union (TFEU) in the consolidated version of the amending treaties. The references to provisions referred to are renumbered as well (OJEU 9.5.2008 C 115/148):
TITLE VII
SOLIDARITY CLAUSE
Article 222 TFEU
1. The Union and its Member States shall act jointly in a spirit of solidarity if a Member State is the object of a terrorist attack or the victim of a natural or man-made disaster. The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, to:
(a) — prevent the terrorist threat in the territory of the Member States;
— protect democratic institutions and the civilian population from any terrorist attack;
— assist a Member State in its territory, at the request of its political authorities, in the event of a terrorist attack;
(b) assist a Member State in its territory, at the request of its political authorities, in the event of a natural or man-made disaster.
2. Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities. To that end, the Member States shall coordinate between themselves in the Council.
3. The arrangements for the implementation by the Union of the solidarity clause shall be defined by a decision adopted by the Council acting on a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy. The Council shall act in accordance with Article 31(1) of the Treaty on European Union where this decision has defence implications. The European Parliament shall be informed.
For the purposes of this paragraph and without prejudice to Article 240, the Council shall be assisted by the Political and Security Committee with the support of the structures developed in the context of the common security and defence policy and by the Committee referred to in Article 71; the two committees shall, if necessary, submit joint opinions.
4. The European Council shall regularly assess the threats facing the Union in order to enable the Union and its Member States to take effective action.
***
Comment
Solidarity was described as the mortar of European integration in the blog post on civil protection, and Article 222 TFEU can be read in conjunction with Article 196 TFEU.
***
The solidarity clause was introduced by the European Convention in two parts. Article I-42 of the draft Constitution was named the Solidarity clause and it was situated in Chapter II Specific provisions under Title V Exercise of Union competence in the ‘constitutional’ part of the draft. Article III-231 came under the Chapter VIII headline Implementation of the solidarity clause. The proposal within the Convention came from the working group on defence.
The corresponding provisions in the Constitutional Treaty were Articles I-43 and III-329.
The Lisbon Treaty Article 222 TFEU merges the two provisions, but the amending treaty lifted out the general provisions, the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) provisions from the (coming) TFEU into the Treaty on European Union (TEU), leaving the solidarity clause Article 222 TFEU somewhat lonely in the context of external action by the Union (Part Five). Perhaps the location has become less constitutional in concept.
***
Anyway, the solidarity clause is not the only manifestation of solidarity in the Treaty of Lisbon. Here are a few examples:
In the TEU Preamble the Heads of State desire to deepen the solidarity between their peoples while respecting their history, their culture and their traditions.
Article 2 TEU mentions solidarity among the founding values of the European Union, common to the member states.
According to Article 3(3) TEU the European Union shall promote economic, social and territorial cohesion, and solidarity among member states.
Article 24(2) TEU, within the framework of the principles and objectives of its external action, mandates the European Union to conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.
In Article 24(3) TEU the member states undertake to support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and to comply with the Union's action in this area. The provision continues with the obligation for the member states to work together to enhance and develop their mutual political solidarity and to refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations (loyal cooperation).
Member states have an obligation of aid and assistance if a member state is the victim of armed aggression on its territory, according to Article 42(7) TEU.
In the context of the area of freedom, security and justice, the a common policy on asylum, immigration and external border control is based on solidarity between member states (Article 67(2) TFEU). Article 80 repeats the principles of solidarity and fair sharing in the Chapter on border checks, asylum and immigration.
Under economic policy, pursuant to Article 122 TFEU, the Council can decide , in a spirit of solidarity between Member States, upon measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy.
The objectives of the European Union’s energy policy are expressed in a spirit of solidarity between member states (Aricle 194 TFEU). One fresh assessment of reality comes from the former executive director of the International Energy Agency Claude Mandil in an interview for EurActiv: “Several EU governments did not show solidarity over the recent gas crisis.”
Read the interview at:
http://www.euractiv.com/en/energy/energy-solidarity-just-words-iea-chief/article-179261
***
It looks like progress is being made, at least if the Lisbon Treaty enters into force, but the ‘de facto’ solidarity evoked by Robert Schuman has been long in coming and it is still very much an ongoing work.
***
Article 222 TFEU covers two groups of threats: 1) from terrorists, and 2) natural or man-made disasters.
***
The member states have an obligation to assist, if requested to do so.
The foundations for effective action are less unambiguous.
The member states coordinae between themselves in the Council. Unanimity is required if the decision has defence implications (Article 31(1) TEU).
The Council takes the implementing decisions on a joint proposal by the Commission and the High Representative.
Declaration 37 on Article 222 of the Treaty on the Functioning of the European Union adds the sobering thought that none of the provisions of Article 222 is intended to affect the right of another member state to choose the most appropriate means to comply with its own solidarity obligation towards that member state. ─ Far from a rock-hard guarantee.
Without stepping on the toes of the Committee of the Permanent Representatives of the Member States (Coreper; Article 240 TFEU), the intergovernmental (Council) Political and Security Committee shall assist the Council. It is supported by the structures developed in the context of the common security and defence policy and by the Internal Security Committee (referred to in Article 71 TFEU).
***
Politically in force
Following the vicious terrorist attacks in Madrid 11 March 2004, the Heads of State or Government of the Member States of the European Union, and of the States acceding to the Union on 1 May, declared their firm intention to act in the spirit of the solidarity clause laid down in Article 42 of the draft Treaty establishing a Constitution for Europe, and to act jointly in a spirit of solidarity if one of them is the victim of a terrorist attack, by mobilising all the instruments at their disposal, including military resources (European Council, Declaration on solidarity against terrorism, 25 March 2004).
Ralf Grahn
Monday, 12 May 2008
EU TFEU: Europol I
The EU Treaty of Lisbon incorporates the foundations of Europol – the European Police Office – into the Treaty on the Functioning of the European Union (TFEU).
The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.
But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?
***
Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 88 TFEU
(ex Article 30 TEU)
1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;
(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.
3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).
In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.
***
The IGC 2004 adopted the text of the European Convention without change.
The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).
***
The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.
The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.
***
Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.
Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.
For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?
The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.
In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?
The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
Force is the sole responsibility of the member states. How can you square this with invading armies?
***
Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?
We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.
We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.
We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.
If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?
And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?
Ralf Grahn
The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.
But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?
***
Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 88 TFEU
(ex Article 30 TEU)
1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;
(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.
3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).
In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.
***
The IGC 2004 adopted the text of the European Convention without change.
The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).
***
The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.
The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.
***
Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.
Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.
For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?
The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.
In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?
The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
Force is the sole responsibility of the member states. How can you square this with invading armies?
***
Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?
We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.
We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.
We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.
If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?
And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?
Ralf Grahn
Tuesday, 29 April 2008
EU TFEU: Freezing terrorists’ funds
The Treaty of Lisbon makes it easier for the EU to freeze terrorists’ funds. Even the UK government seems enthusiastic.
***
Article 75 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 98), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 75 TFEU
(ex Article 60 TEC)
Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61h TFEU (ToL), which became Article 75 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).
The referral to the objectives of the area of freedom, security and justice in the original Lisbon Treaty was to Article 61 TFEU (ToL), which became Article 67 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).
***
Article 60 of the Treaty establishing the European Community (TEC), to be moved and amended, is found in the latest consolidated version of the current treaties, under TEC Title III ‘Free movement of persons, services and capital’ and its Chapter 4 ‘Capital and payments’ (OJ 29.12.2006 C 321 E/65):
Article 60 TEC
1. If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.
2. Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest.
The Council may, acting by a qualified majority on a proposal from the Commission, decide that the Member State concerned shall amend or abolish such measures. The President of the Council shall inform the European Parliament of any such decision taken by the Council.
***
The European Convention proposed Article III-49 of the draft Treaty establishing a Constitution for Europe, still under Section 4 ‘Capital and payments’ (OJ 18.7.2003 C 169/35):
Article III-49 Draft Constitution
Where necessary to achieve the objectives set out in Article III-158, in particular as regards prevention of and fight against organised crime, terrorism and trafficking in human beings, European laws may define a framework for measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-state entities.
The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the laws referred to in the first paragraph.
***
Article III-160 of the Treaty establishing a Constitution for Europe, still under Section 4 on capital and payments, drew upon but amended the draft provision (OJ 16.12.2004 C 310/68):
Article III-160 Constitution
Where necessary to achieve the objectives set out in Article III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
The current Article 60 TEC refers to cases envisaged in Article 301 TEC, namely economic sanctions targeting one or more third countries and based on a prior common position or joint action adopted according to the TEU (common foreign and security policy). The urgent unilateral measures by a member state are targeted at countries, too.
The existing provision is ill adapted to measures concerning non-state actors, such as terrorists.
The European Convention drew the first provision, which referred to the aims of the area of freedom, security and justice (FSJ). The proposed scope of Article III-49 of the draft Constitution was rather wide, including the prevention of and fight against organised crime, terrorism and trafficking in human beings.
Article III-160 of the Constitutional Treaty retained the referral to the objectives of the area of freedom, security and justice, but the IGC 2004 limited the scope of the provision to terrorism and related activities and to a framework for ‘administrative’ measures. The third paragraph on legal safeguards was added. Additionally, the IGC 2004 agreed on a Declaration (number 15) on Articles III-160 and III-322, recalling the respect for fundamental rights and the need for clear and distinct criteria.
Article 75 TFEU (61h ToL) of the Treaty of Lisbon contains technical adjustments and minor stylistic changes, but in essence it takes over the text of the Constitution.
***
There are two declarations to take into account. First, we have Declaration (number 25) on Articles 75 and 215 of the Treaty on the Functioning of the European Union, almost identical to the corresponding declaration of the IGC 2004 (in the Council’s consolidated version of the Lisbon Treaty, document 6655/08, page 439):
25. Declaration on Articles 75 and 215 of the Treaty on the Functioning of the European Union
The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.
***
Second, there is a unilateral declaration of intent by the UK, namely (on page 453):
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 75 of the Treaty on the Functioning of the European Union
The United Kingdom fully supports robust action with regard to adopting financial sanctions designed to prevent and combat terrorism and related activities. Therefore, the United Kingdom declares that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of all proposals made under Article 75 of the Treaty on the Functioning of the European Union.
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
***
Article 75 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 98), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 75 TFEU
(ex Article 60 TEC)
Where necessary to achieve the objectives set out in Article 67, as regards preventing and combating terrorism and related activities, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt measures to implement the framework referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
In Article 2, points 62 and 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61h TFEU (ToL), which became Article 75 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).
The referral to the objectives of the area of freedom, security and justice in the original Lisbon Treaty was to Article 61 TFEU (ToL), which became Article 67 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).
***
Article 60 of the Treaty establishing the European Community (TEC), to be moved and amended, is found in the latest consolidated version of the current treaties, under TEC Title III ‘Free movement of persons, services and capital’ and its Chapter 4 ‘Capital and payments’ (OJ 29.12.2006 C 321 E/65):
Article 60 TEC
1. If, in the cases envisaged in Article 301, action by the Community is deemed necessary, the Council may, in accordance with the procedure provided for in Article 301, take the necessary urgent measures on the movement of capital and on payments as regards the third countries concerned.
2. Without prejudice to Article 297 and as long as the Council has not taken measures pursuant to paragraph 1, a Member State may, for serious political reasons and on grounds of urgency, take unilateral measures against a third country with regard to capital movements and payments. The Commission and the other Member States shall be informed of such measures by the date of their entry into force at the latest.
The Council may, acting by a qualified majority on a proposal from the Commission, decide that the Member State concerned shall amend or abolish such measures. The President of the Council shall inform the European Parliament of any such decision taken by the Council.
***
The European Convention proposed Article III-49 of the draft Treaty establishing a Constitution for Europe, still under Section 4 ‘Capital and payments’ (OJ 18.7.2003 C 169/35):
Article III-49 Draft Constitution
Where necessary to achieve the objectives set out in Article III-158, in particular as regards prevention of and fight against organised crime, terrorism and trafficking in human beings, European laws may define a framework for measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-state entities.
The Council of Ministers, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the laws referred to in the first paragraph.
***
Article III-160 of the Treaty establishing a Constitution for Europe, still under Section 4 on capital and payments, drew upon but amended the draft provision (OJ 16.12.2004 C 310/68):
Article III-160 Constitution
Where necessary to achieve the objectives set out in Article III-257, as regards preventing and combating terrorism and related activities, European laws shall define a framework for administrative measures with regard to capital movements and payments, such as the freezing of funds, financial assets or economic gains belonging to, or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt European regulations or European decisions in order to implement the European laws referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal safeguards.
***
The current Article 60 TEC refers to cases envisaged in Article 301 TEC, namely economic sanctions targeting one or more third countries and based on a prior common position or joint action adopted according to the TEU (common foreign and security policy). The urgent unilateral measures by a member state are targeted at countries, too.
The existing provision is ill adapted to measures concerning non-state actors, such as terrorists.
The European Convention drew the first provision, which referred to the aims of the area of freedom, security and justice (FSJ). The proposed scope of Article III-49 of the draft Constitution was rather wide, including the prevention of and fight against organised crime, terrorism and trafficking in human beings.
Article III-160 of the Constitutional Treaty retained the referral to the objectives of the area of freedom, security and justice, but the IGC 2004 limited the scope of the provision to terrorism and related activities and to a framework for ‘administrative’ measures. The third paragraph on legal safeguards was added. Additionally, the IGC 2004 agreed on a Declaration (number 15) on Articles III-160 and III-322, recalling the respect for fundamental rights and the need for clear and distinct criteria.
Article 75 TFEU (61h ToL) of the Treaty of Lisbon contains technical adjustments and minor stylistic changes, but in essence it takes over the text of the Constitution.
***
There are two declarations to take into account. First, we have Declaration (number 25) on Articles 75 and 215 of the Treaty on the Functioning of the European Union, almost identical to the corresponding declaration of the IGC 2004 (in the Council’s consolidated version of the Lisbon Treaty, document 6655/08, page 439):
25. Declaration on Articles 75 and 215 of the Treaty on the Functioning of the European Union
The Conference recalls that the respect for fundamental rights and freedoms implies, in particular, that proper attention is given to the protection and observance of the due process rights of the individuals or entities concerned. For this purpose and in order to guarantee a thorough judicial review of decisions subjecting an individual or entity to restrictive measures, such decisions must be based on clear and distinct criteria. These criteria should be tailored to the specifics of each restrictive measure.
***
Second, there is a unilateral declaration of intent by the UK, namely (on page 453):
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 75 of the Treaty on the Functioning of the European Union
The United Kingdom fully supports robust action with regard to adopting financial sanctions designed to prevent and combat terrorism and related activities. Therefore, the United Kingdom declares that it intends to exercise its right under Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice to take part in the adoption of all proposals made under Article 75 of the Treaty on the Functioning of the European Union.
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Tuesday, 29 January 2008
EU Treaty of Lisbon: Civilian and military missions
In the Petersberg Declaration, the Western European Union (WEU) Council of Ministers decided to strengthen WEU’s operational role by taking on tasks in addition to the mutual defence obligations of the member states. These are known as the Petersberg tasks (Bonn, 19 June 1992; Declaration II.4):
“4. Apart from contributing to the common defence in accordance with Article 5 of the Washington Treaty and Article V of the modified Brussels Treaty respectively, military units of WEU member States, acting under the authority of WEU, could be employed for:
- humanitarian and rescue tasks;
- peacekeeping tasks;
- tasks of combat forces in crisis management, including peacemaking.”
From a British point of view, the European Security and Defence Policy (ESDP) grew from a UK-French initiative at St Malo in 1998, where the Heads of State and Government of France and the United Kingdom are agreed i.a. that the European Union needs to be in a position to play its full role on the international stage, including the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP. The Council must be able to take decisions on an intergovernmental basis, covering the whole range of activity set out in Title V of the Treaty of European Union.
To this end, the leaders concluded, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises.
The St Malo agreement is still presented as one of the highlights of relations between the UK and France, as by the British Embassy in France:
“Current cooperation with France on European Security and Defence Policy evolved from the St Malo proposal to give the EU the capacity to respond to international crises through military and civilian, such as police, operations. In late 2003 this led to Trilateral proposals on the issue of the planning of EU operations, finally agreed in October 2004 at trilateral level, and on the defence aspects of the draft Constitutional Treaty.
The UK and France have recently developed a joint proposal to create EU rapid response forces for urgent crises where the UN needs assistance (battlegroups). The UK and French governments are both buying new aircraft carriers and are looking at the scope for co-operation on this, and on other major procurement projects such as air refuelling tankers.”
This view is attested by the UK House of Commons Foreign Affairs Committee, which notes that President Sarkozy of France has already made it clear that, ten years after St Malo, the development of EU defence will be a priority of France’s EU Presidency in the second half of 2008 (p. 71)
***
Since the following Articles on the common security and defence policy are new at the Treaty level, the intergovernmental conference (IGC 2007) had to render them in a readable way. Thus, the IGC 2007 version is the consolidated version (bar later renumbering; I follow the original Lisbon Treaty numbers). Unmutilated Article 28b TEU is next (OJ 17.12.2007 C 306/34 and 35):
50) The following new Articles 28 B to 28 E shall be inserted:
Article 28b
1. The tasks referred to in Article 28 A(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
CSDP missions are not new as such. In CSDP Article 17 TEU different tasks are mentioned (latest consolidated version OJ 29.12.2006 C 321 E/17):
Article 17(2) TEU
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking.
***
In this, as in many instances, the Treaty of Lisbon is indebted to the Convention, which drafted Article III-210 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68 and 69):
SECTION 1
The common security and defence policy
Article III-210
1. The tasks referred to in Article I-40(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peacemaking and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council of Ministers, acting unanimously, shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council of Ministers and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
In the Treaty establishing a Constitution for Europe the member states’ governments signed up to the proposal of the Convention in Article III-309 (OJ 16.12.2004 C 310/138 and 139):
SECTION 2
THE COMMON SECURITY AND DEFENCE POLICY
Article III-309
1. The tasks referred to in Article I-41(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
We see that humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking, already have their basis in the existing TEU, exactly as presented in the Petersberg Declaration.
The Convention, the Constitutional Treaty and the Reform Treaty, almost ‘verbatim’, codify and exemplify existing and expanding practice, where not only military units, but civilian components can be deployed as well, and the fight against terrorism is mentioned explicitly. This is the expansion in the list of “Petersberg tasks” the UK House of Commons Foreign Affairs Committee refers to in its report (p. 73).
The Swedish government refers to the framework for the European Union’s crisis management operations in the Reform Treaty Article 28a TEU and mentions the further development of the Petersberg tasks in Article 28b TEU to encompass missions before, during and after a conflict. The government offers some examples of civilian missions – police tasks, support for the rule of law and rescue services – as well as mentioning military tasks (p. 365-366).
While the Council adopts the necessary basic decisions, unanimously pursuant to Article 28a(4), we take note of the importance of the High Representative and the Political and Security Committee in the day to day coordination of the CSDP operations.
Ralf Grahn
Sources:
Western European Union Council of Ministers: Petersberg Declaration; Bonn, 19 June 1992
Joint declaration: British-French summit St Malo, 3-4 December 1998
British Embassy, France: The Franco-British relationship today
UK House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty; Third Report of Session 2007-08; 20 January 2008
Government of Sweden: Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds) 2007:48; 20 december 2007
“4. Apart from contributing to the common defence in accordance with Article 5 of the Washington Treaty and Article V of the modified Brussels Treaty respectively, military units of WEU member States, acting under the authority of WEU, could be employed for:
- humanitarian and rescue tasks;
- peacekeeping tasks;
- tasks of combat forces in crisis management, including peacemaking.”
From a British point of view, the European Security and Defence Policy (ESDP) grew from a UK-French initiative at St Malo in 1998, where the Heads of State and Government of France and the United Kingdom are agreed i.a. that the European Union needs to be in a position to play its full role on the international stage, including the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP. The Council must be able to take decisions on an intergovernmental basis, covering the whole range of activity set out in Title V of the Treaty of European Union.
To this end, the leaders concluded, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises.
The St Malo agreement is still presented as one of the highlights of relations between the UK and France, as by the British Embassy in France:
“Current cooperation with France on European Security and Defence Policy evolved from the St Malo proposal to give the EU the capacity to respond to international crises through military and civilian, such as police, operations. In late 2003 this led to Trilateral proposals on the issue of the planning of EU operations, finally agreed in October 2004 at trilateral level, and on the defence aspects of the draft Constitutional Treaty.
The UK and France have recently developed a joint proposal to create EU rapid response forces for urgent crises where the UN needs assistance (battlegroups). The UK and French governments are both buying new aircraft carriers and are looking at the scope for co-operation on this, and on other major procurement projects such as air refuelling tankers.”
This view is attested by the UK House of Commons Foreign Affairs Committee, which notes that President Sarkozy of France has already made it clear that, ten years after St Malo, the development of EU defence will be a priority of France’s EU Presidency in the second half of 2008 (p. 71)
***
Since the following Articles on the common security and defence policy are new at the Treaty level, the intergovernmental conference (IGC 2007) had to render them in a readable way. Thus, the IGC 2007 version is the consolidated version (bar later renumbering; I follow the original Lisbon Treaty numbers). Unmutilated Article 28b TEU is next (OJ 17.12.2007 C 306/34 and 35):
50) The following new Articles 28 B to 28 E shall be inserted:
Article 28b
1. The tasks referred to in Article 28 A(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
CSDP missions are not new as such. In CSDP Article 17 TEU different tasks are mentioned (latest consolidated version OJ 29.12.2006 C 321 E/17):
Article 17(2) TEU
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking.
***
In this, as in many instances, the Treaty of Lisbon is indebted to the Convention, which drafted Article III-210 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68 and 69):
SECTION 1
The common security and defence policy
Article III-210
1. The tasks referred to in Article I-40(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peacemaking and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council of Ministers, acting unanimously, shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council of Ministers and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
In the Treaty establishing a Constitution for Europe the member states’ governments signed up to the proposal of the Convention in Article III-309 (OJ 16.12.2004 C 310/138 and 139):
SECTION 2
THE COMMON SECURITY AND DEFENCE POLICY
Article III-309
1. The tasks referred to in Article I-41(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
We see that humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking, already have their basis in the existing TEU, exactly as presented in the Petersberg Declaration.
The Convention, the Constitutional Treaty and the Reform Treaty, almost ‘verbatim’, codify and exemplify existing and expanding practice, where not only military units, but civilian components can be deployed as well, and the fight against terrorism is mentioned explicitly. This is the expansion in the list of “Petersberg tasks” the UK House of Commons Foreign Affairs Committee refers to in its report (p. 73).
The Swedish government refers to the framework for the European Union’s crisis management operations in the Reform Treaty Article 28a TEU and mentions the further development of the Petersberg tasks in Article 28b TEU to encompass missions before, during and after a conflict. The government offers some examples of civilian missions – police tasks, support for the rule of law and rescue services – as well as mentioning military tasks (p. 365-366).
While the Council adopts the necessary basic decisions, unanimously pursuant to Article 28a(4), we take note of the importance of the High Representative and the Political and Security Committee in the day to day coordination of the CSDP operations.
Ralf Grahn
Sources:
Western European Union Council of Ministers: Petersberg Declaration; Bonn, 19 June 1992
Joint declaration: British-French summit St Malo, 3-4 December 1998
British Embassy, France: The Franco-British relationship today
UK House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty; Third Report of Session 2007-08; 20 January 2008
Government of Sweden: Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds) 2007:48; 20 december 2007
Wednesday, 19 September 2007
Citizens of Europe
The present interests and future role of the citizens of the European Union have continued to be the focal point of my writing on my Finnish blog:
http://grahnlaw.blogs.fi
I have posted new articles under the following headings:
Laatua liikkuvuuteen
Terrorismin rintamalinjat
Eurooppaministerit avoimuudesta
Sarkozyn Eurooppa
Ironinen heitto
Kaksi pelastusoperaatiota
Toiveuni vai painajainen?
Regards
Ralf Grahn
http://grahnlaw.blogs.fi
I have posted new articles under the following headings:
Laatua liikkuvuuteen
Terrorismin rintamalinjat
Eurooppaministerit avoimuudesta
Sarkozyn Eurooppa
Ironinen heitto
Kaksi pelastusoperaatiota
Toiveuni vai painajainen?
Regards
Ralf Grahn
Thursday, 26 April 2007
Human rights: universal or particular?
Are the values of democracy, the rule of law and human rights and fundamental freedoms universal? Are they even European?
The Parliamentary Assembly of the Council of Europe noted that “acceptance and realisation of the principles of democracy, the rule of law and human rights and fundamental freedoms are a necessary condition for membership in the Organisation” (Resolution 1547, 18 April 2007).
But the same Assembly sees “a need to reduce the gap between standards on paper and the reality on the ground”.
Terrorism poses interesting questions on the real effectiveness of these values.
The Parliamentary Assembly stated that even the most serious human rights violations, such as enforced disappearances, extrajudicial killings, secret detentions, torture and inhuman treatment, still occur in Europe, and that impunity, even for these most serious human rights violations, has not been eradicated in Europe.
The Parliamentary Assembly, at least, seems to share some fundamental values: “Terrorism is one of the key challenges for Europe’s open societies; it can and must be vanquished without violating the very principles of human rights, the rule of law and tolerance that terrorists are out to destroy.”
The Assembly called upon all member states to “fully respect human rights while fighting terrorism, as already requested by the Assembly on numerous occasions, refuse to expel or extradite any individual to a country where there is a real risk of him or her being subjected to serious human rights violations, regardless of assurances received, as well as to sign and/or ratify at the earliest opportunity the Organisation’s conventions and instruments pertaining to human rights, including those on combating terrorism.”
It is not clear how much government departments or governments in member states have aided and abetted human rights violations, but in spite of less than enthusiastic co-operation from some European governments, there have been efforts within the Council of Europe and the European Union to uncover the truth, and some judicial proceedings have been initiated in member states.
Far from perfect, this state of affairs can be contrasted with the atmosphere of impunity surrounding the so called War on terror.
Have human rights and fundamental freedoms become shared or dividing values for Europe and the USA?
Ralf Grahn
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