The Treaty of Lisbon retains a right for member states – at least a quarter of them – to take initiatives in the fields of judicial cooperation in criminal matters and police cooperation.
Is the extension of the ‘Community method’ a welcome reform in the EU area of freedom, security and justice (FSJ) or justice and home affairs (JHA)? Is the residual right of initiative for member states a positive contribution or the sign of a timid approach to reform?
***
Article 76 of the Treaty on the Functioning of the European Union (TFEU), the last of Chapter 1 with general provisions, 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 76 TFEU
The acts referred to in Chapters 4 and 5, together with the measures referred to in Article 74 which ensure administrative cooperation in the areas covered by these Chapters, shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
***
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 61i TFEU (ToL), which became Article 76 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58).
The referral to the measures which ensure administrative cooperation in the original Lisbon Treaty was to Article 61g TFEU (ToL), which became Article 74 TFEU in the consolidated treaty (OJ 17.12.2007 C 306/209).
***
There are no directly corresponding provisions in the current Treaty on European Union (TEU) or the Treaty establishing the European Community (TEC). Cf. the latest consolidated version of the current treaties, in (OJ 29.12.2006 C 321 E/1).
But in the existing TEU Title VI on police and judicial cooperation in criminal matters, Article 34(2) TEU spells out that the Council shall take measures and promote cooperation acting unanimously on the initiative of any member state of the Commission (OJ 29.12.2006 C 321 E/26).
***
The European Convention modified the move of intergovernmental police and judicial cooperation in criminal matters (third pillar) to the unified EU structure (where the ‘Community method’ or ‘third pillar’ principles reigned) by retaining a residual right of initiative for a quarter of member states. The proposed Article III-165 of the draft Treaty establishing a Constitution for Europe served this purpose (OJ 18.7.2003 C 169/58):
Article III-165 Draft Constitution
The acts referred to in Sections 4 and 5 of this Chapter shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
***
The IGC 2004 took over the text proposed by the European Convention, but added the regulations which ensured administrative cooperation in the areas of police and judicial cooperation in criminal matters to the scope of the provision (OJ 16.12.2004 C 310/114):
Article III-264 Constitution
The acts referred to in Sections 4 and 5, together with the European regulations referred to in Article III-263 which ensure administrative cooperation in the areas covered by these Sections, shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
***
If we disregard the technical changes, we see that the IGC 2007 adopted the text of its predecessor, the IGC 2004, in accordance with the general rule on amendments to the TEC in the IGC 2007 Mandate: ‘The innovations as agreed in the 2004 IGC will be inserted into the Treaty by way of specific modifications in the usual manner.’ (See Council document 11218/07, point 18, page 7.)
***
The main rule within the European Community (future European Union), as part of the so called institutional balance, is the Commission’s monopoly to propose legislative acts (except where the treaties provide otherwise). In addition, the Commission proposes other acts where the treaties so provide.
The most up-to-date expression of these principles, which set the European Community (European Union) apart from traditional treaty based international organisations, is Article 17(2) TEU in the Council’s consolidated version of the Lisbon Treaty (document 6655/08, page 32).
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the right of initiative on page 123 and 124. The report presents the general background, the right of initiative for member states under Article 76 TFEU and the witnesses’ views on the problems connected with member states’ initiatives.
For the convenience of readers I quote the text here:
“The right of initiative
6.67. Under the Treaty of Lisbon the right to propose EU legislation—the right of initiative—will generally rest with the Commission, although in some circumstances Member States (and in limited cases other institutions) have the power to make a proposal for legislation.
i. Arrangements under the existing Treaties
6.68. While Title IV is subject to the “Community method” and therefore the Commission has exclusive right of initiative in respect of proposals for Community legislation, in Title VI the right of initiative is shared by the Commission and the Member States. In practice the majority of proposals emanate from the Commission, but any Member State may make a proposal for a Framework Decision and many have done so.
ii. Position post-Treaty of Lisbon
6.69. New Article 76 provides that measures in Chapters 4 and 5 of new Title V TFEU (i.e. measures relating to police and judicial cooperation in criminal matters—old Title VI TEU) shall be adopted on a proposal from the Commission or on the initiative of a quarter of the Member States. Thus some element of the Member States’ right of initiative has been retained, albeit in a more limited form.
6.70. The Law Societies welcomed the change. They considered that this would ensure a more coordinated and coherent approach to legislation, planned in line with long-term EU strategies rather than being based on topical national considerations (pp E99, E163).
6.71. Maria Fletcher regretted the retention of any right of initiative for Member States under the Treaty of Lisbon. She pointed to practical experience of Member States’ proposals, which in her view had been problematic to date: Member States tended to make proposals reflecting, to a disproportionate degree, domestic problems and proposals were often inadequately drafted. She considered that the Commission was better placed to submit proposals given that it acted in the interests of the Union and had the capacity and expertise to consult widely and conduct impact assessments (p E150). This was a view shared by FTI, which expressed regret that Member States would not be required to produce similar assessments when making use of their right of initiative (p E147).
6.72. Not all proposals in the area of FSJ, whether they emanate from Member States or the Commission, are supported by the statistical and other evidence critical for assessing the need for proposed legislation, and especially its compliance with the subsidiarity principle. The problem is greater with Member States’ initiatives: while the Commission always provides an explanatory memorandum and sometimes provides an impact assessment, Member States rarely provide either.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
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
In addition, two ‘private’ annotated and consolidated versions including the Treaty of Lisbon amendments can be pointed out.
Peadar ó Broin, of the Institute of International and European Affairs (Dublin), has edited a consolidated and annotated version of the EU treaties as amended by the Treaty of Lisbon. The highlighted IIEA shows the differences between different stages. It is available through the web page of the European Policy Institutes Netword (EPIN):
http://www.epin.org/new/files/AnnotatedTreaties.pdf
Jens-Peter Bonde has issued a ‘Consolidated Reader-Friendly Edition’ of the TEU and the TFEU as amended by the Treaty of Lisbon. There are remarks about changes are in the margin and symbols are used to show amendments. The consolidation is available at:
http://www.j.dk/exp/images/bondes/Consolidated_LISBON_TREATY_3.pdf
The Irish Referendum Commission is gathering speed in its campaign to inform the public ahead of the 12 June 2008 Lisbon Treaty referendum. At this point in time it is possible to find information about the essential treaty changes boiled down to a few pages for the busy reader:
http://www.lisbontreaty2008.ie
Wednesday, 30 April 2008
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
Monday, 28 April 2008
Åland Islands debate EU Lisbon Treaty
Fellow blogger EU Law asked me what the local Åland Islands parliament is doing with the Treaty of Lisbon today. I thought it would be better to try to answer in a separate post, not in the comments section of an unrelated blog post.
Due to time constraints this note is going to be rushed. Here are the essentials:
The regional parliament (lagtinget) debates the Treaty of Lisbon, remitted by the President of the Republic of Finland with regard to possible approval as regards Åland, with a view to sending it to committee. The local government (landskapsregeringen) has prepared a 22 page paper (meddelande, “Mitteilung”) where it stresses the importance of added influence for the Åland Islands in Finnish EU affairs.
The debate started at 13 o’clock local time and is ongoing. At least one delegate of the more separatist kind has proposed a moratorium on dealing with the proposal from the President until 15 September 2008, instead of remitting it to the committee. So, immediate or delayed remittal to committee will probably be voted upon later today.
Links for those who read Swedish are found at Ålands lagting:
http://www.lagtinget.aland.fi/
Ralf Grahn
Due to time constraints this note is going to be rushed. Here are the essentials:
The regional parliament (lagtinget) debates the Treaty of Lisbon, remitted by the President of the Republic of Finland with regard to possible approval as regards Åland, with a view to sending it to committee. The local government (landskapsregeringen) has prepared a 22 page paper (meddelande, “Mitteilung”) where it stresses the importance of added influence for the Åland Islands in Finnish EU affairs.
The debate started at 13 o’clock local time and is ongoing. At least one delegate of the more separatist kind has proposed a moratorium on dealing with the proposal from the President until 15 September 2008, instead of remitting it to the committee. So, immediate or delayed remittal to committee will probably be voted upon later today.
Links for those who read Swedish are found at Ålands lagting:
http://www.lagtinget.aland.fi/
Ralf Grahn
Reports and publications about the EU area of freedom, security and justice
Here are some suggestions for further reading on the EU area of freedom, security and justice (FSJ), by the way of an unsorted list of fairly recent publications:
Hugo Brady, of the Centre for European Reform, has written a blog post ‘The new politics of EU internal security’ (28 March 2008), where he calls for a more constructive working relationship between the member state governments and the LIBE Committee of the European Parliament:
http://centreforeuropeanreform.blogspot.com/2008/03/new-politics-of-eu-internal-security.html
A fairly recent CER entry on justice and home affairs is an article by Hugo Brady, published in the January – February 2008 issue of E!Sharp, ‘Wanted: an EU migration policy:
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
The CER Policy Briefing ‘EU migration policy: An A–Z’ by Hugo Brady is a more substantial treatment of the matter:
http://www.cer.org.uk/pdf/briefing_813.pdf
CEPS, the Centre for European Policy Studies, has some interesting recent papers on freedom, security and justice issues. Hasso Lieber has written ‘Checks and balances: Dividing the Directorate General for Justice, Freedom and Security in two – an Interior and a Justice branch’ (CEPS Policy brief No. 158, April 2008):
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
A 23 April 2008 CEPS Working Document by Florian Trauner and Imke Kruse is called ‘EC Visa Facilitation and Readmission Agreements: Implementing a New EU Security Approach in the Neighbourhood’:
http://shop.ceps.eu/BookDetail.php?item_id=1646
‘The Other Side of the Moons – The Schengen Information System and Human rights: A Task for National Courts’ is a CEPS Working Document by Evelien Brouwer, published 14 April 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1642
Didier Bigo, Sergio Carrera and Elspeth Guild have authored ‘What Future for the Area of Freedom, Security and Justice? Recommendations on EU Migration and Borders Policies in a Globalising World’, CEPS Policy Brief, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1627
Anaïs Faure Atger has produced the Challenge Paper ‘The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of movement or a scattered web of security checks?’, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1629
Daniel Korski, of the European Council on Foreign Relations, comments on the external aspects of internal security in the article ‘Making Europe’s voice louder’, 19 April 2008:
http://www.ecfr.eu/content/entry/commentary_making_europes_voice_louder/
Hanna Goeters wrote a substantial report on ‘New Criminal Law Developments in the Community Legal Order, published in February 2008 by the Swedish Institute for European Policy Studies (Sieps):
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
‘The Future of the Common European Asylum System: In Need of a More Comprehensive Burden-Sharing Approach’, by Eiko Thielemann, was published as a Sieps European Policy Analysis paper in January 2008:
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
In an Events Report of the European Policy Centre (EPC), Irene Khan, Secretary-General of Amnesty International, gives her view on ‘EU asylum policy in a securitised world’, published 28 April 2008:
http://www.epc.eu/en/er.asp?TYP=ER&LV=293&see=y&t=2&PG=ER/EN/detail&l=&AI=799
Since external and internal aspect of security are inextricably linked, Antonio Missiroli’s European Policy Centre Policy Brief ‘Revisiting the European Security Strategy – beyond 2008’, published 23 April 2008, is relevant to the area of freedom, security and justice:
http://www.epc.eu/en/pub.asp?TYP=TEWN&LV=187&see=y&t=&PG=TEWN/EN/detailpub&l=12&AI=929
Statewatch runs the impressive European Monitoring & Documentation Centre on Justice and Home Affairs in the EU, with the latest news and documents added 23 April 2008. Some content requires a paid subscription, but much is freely available:
http://www.statewatch.org/semdoc/
There are Statewatch Observatories on the policy areas concerned with EU freedom, security and justice issues, with a special focus on civil liberties:
http://www.statewatch.org/
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
‘FRONTEX: the EU external borders agency’ is the 9th Report of Session 2007–08 by the House of Lords European Union Committee (HL Paper 60, published 5 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf
The European Commission churns out a daunting amount of proposals and related press releases, as can be seen in the Newsroom of the Directorate General:
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
The home page of the Commissions Virtual Documentation Centre offers links to the different areas of EU justice and home affairs, including a consolidated list of the EU legislation in the area of freedom, security and justice (updated November 2007):
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
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
Hugo Brady, of the Centre for European Reform, has written a blog post ‘The new politics of EU internal security’ (28 March 2008), where he calls for a more constructive working relationship between the member state governments and the LIBE Committee of the European Parliament:
http://centreforeuropeanreform.blogspot.com/2008/03/new-politics-of-eu-internal-security.html
A fairly recent CER entry on justice and home affairs is an article by Hugo Brady, published in the January – February 2008 issue of E!Sharp, ‘Wanted: an EU migration policy:
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
The CER Policy Briefing ‘EU migration policy: An A–Z’ by Hugo Brady is a more substantial treatment of the matter:
http://www.cer.org.uk/pdf/briefing_813.pdf
CEPS, the Centre for European Policy Studies, has some interesting recent papers on freedom, security and justice issues. Hasso Lieber has written ‘Checks and balances: Dividing the Directorate General for Justice, Freedom and Security in two – an Interior and a Justice branch’ (CEPS Policy brief No. 158, April 2008):
http://www.cer.org.uk/pdf/article_brady_esharp_jan08_1.pdf
A 23 April 2008 CEPS Working Document by Florian Trauner and Imke Kruse is called ‘EC Visa Facilitation and Readmission Agreements: Implementing a New EU Security Approach in the Neighbourhood’:
http://shop.ceps.eu/BookDetail.php?item_id=1646
‘The Other Side of the Moons – The Schengen Information System and Human rights: A Task for National Courts’ is a CEPS Working Document by Evelien Brouwer, published 14 April 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1642
Didier Bigo, Sergio Carrera and Elspeth Guild have authored ‘What Future for the Area of Freedom, Security and Justice? Recommendations on EU Migration and Borders Policies in a Globalising World’, CEPS Policy Brief, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1627
Anaïs Faure Atger has produced the Challenge Paper ‘The Abolition of Internal Border Checks in an Enlarged Schengen Area: Freedom of movement or a scattered web of security checks?’, published 20 March 2008:
http://shop.ceps.eu/BookDetail.php?item_id=1629
Daniel Korski, of the European Council on Foreign Relations, comments on the external aspects of internal security in the article ‘Making Europe’s voice louder’, 19 April 2008:
http://www.ecfr.eu/content/entry/commentary_making_europes_voice_louder/
Hanna Goeters wrote a substantial report on ‘New Criminal Law Developments in the Community Legal Order, published in February 2008 by the Swedish Institute for European Policy Studies (Sieps):
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
‘The Future of the Common European Asylum System: In Need of a More Comprehensive Burden-Sharing Approach’, by Eiko Thielemann, was published as a Sieps European Policy Analysis paper in January 2008:
http://www.sieps.se/publ/utredningar/bilagor/2007.1u.pdf
In an Events Report of the European Policy Centre (EPC), Irene Khan, Secretary-General of Amnesty International, gives her view on ‘EU asylum policy in a securitised world’, published 28 April 2008:
http://www.epc.eu/en/er.asp?TYP=ER&LV=293&see=y&t=2&PG=ER/EN/detail&l=&AI=799
Since external and internal aspect of security are inextricably linked, Antonio Missiroli’s European Policy Centre Policy Brief ‘Revisiting the European Security Strategy – beyond 2008’, published 23 April 2008, is relevant to the area of freedom, security and justice:
http://www.epc.eu/en/pub.asp?TYP=TEWN&LV=187&see=y&t=&PG=TEWN/EN/detailpub&l=12&AI=929
Statewatch runs the impressive European Monitoring & Documentation Centre on Justice and Home Affairs in the EU, with the latest news and documents added 23 April 2008. Some content requires a paid subscription, but much is freely available:
http://www.statewatch.org/semdoc/
There are Statewatch Observatories on the policy areas concerned with EU freedom, security and justice issues, with a special focus on civil liberties:
http://www.statewatch.org/
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
‘FRONTEX: the EU external borders agency’ is the 9th Report of Session 2007–08 by the House of Lords European Union Committee (HL Paper 60, published 5 March 2008):
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf
The European Commission churns out a daunting amount of proposals and related press releases, as can be seen in the Newsroom of the Directorate General:
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
The home page of the Commissions Virtual Documentation Centre offers links to the different areas of EU justice and home affairs, including a consolidated list of the EU legislation in the area of freedom, security and justice (updated November 2007):
http://ec.europa.eu/justice_home/news/intro/news_intro_en.htm
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
EU TFEU: Administrative cooperation in justice and home affairs
With the Treaty of Lisbon, administrative cooperation in the EU area of freedom, security and justice (FSJ) widens to police and judicial cooperation in criminal matters.
We follow the relevant Lisbon Treaty provision during the treaty reform process and look at how Ireland informs its citizens ahead of the 12 June referendum as well as at what the governments of Sweden and Finland have commented.
***
Article 74 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 74 TFEU
(ex Article 66 TEC)
The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61g TFEU (ToL), which became Article 74 TFEU after renumbering in the consolidated version. The referral in the original Lisbon Treaty was to Article 61i, which became Article 76 TFEU in the consolidated treaty (OJ 17.12.2007 C 308/58).
***
Article 66 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/69):
Article 66 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall take measures to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by this title, as well as between those departments and the Commission.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-164 (OJ 18.7.2003 C 169/58):
Article III-164 Draft Constitution
The Council of Ministers shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, without prejudice to Article III-165, and after consulting the European Parliament.
***
This is how Article III-263 of the Treaty establishing a Constitution for Europe looked as part of the IGC 2004 ‘acquis’ which formed the basis for the IGC 2007 leading to the Treaty of Lisbon (OJ 16.12.2004 C 310/114):
Article III-263 Constitution
The Council shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article III-264, and after consulting the European Parliament.
***
What has changed along the way, if anything?
The current Article 66 TEC covers the present Title 4 on visas, asylum, immigration and other policies related to free movement of persons. Since the European Convention’s draft Constitution the intention has been to extend the scope to cover the whole area of freedom, security and justice.
The more developed system (taxonomy) of legislative acts in the draft Constitution and the Constitution was, of course, lost as part of the ‘constitutional concept’, so the Treaty of Lisbon reverted to the nondescript ‘measures’ to be adopted.
The Council adopts the measures by qualified majority voting (QMV), since Article 74 TFEU does not spell out a requirement of unanimity. Currently unanimous decisions apply within the third pillar questions on police and judicial cooperation in criminal matters according to Article 34(2) TEU, but qualified majority voting in first pillar matters.
The referral to Article 76 TFEU means that the measures concerning administrative cooperation in the areas of judicial cooperation in criminal matters (Chapter 4) and police cooperation (Chapter 5) can be adopted either on a proposal from the Commission or on the initiative of a quarter of the member states. Presently each member state has the right of initiative in these intergovernmental areas based on Article 34(2) TEU, so it is possible to speak about a residual right of initiative.
***
Administrative cooperation in general is mentioned in the Treaty of Lisbon as one of the new areas, where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states. See the Council’s consolidated version, Article 6(1)(g) TFEU, page 67.
***
Irish guides and summaries
When governments or other official bodies provide guides or summaries for the general public concerning the Treaty of Lisbon, the main aim has to be to present essentially correct information about the main changes in a fairly reader-friendly manner.
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland states that administrative co-operation between Member States is also envisaged.
The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Summary mentions ‘Administrative cooperation within the area of freedom, security and justice after consulting the European Parliament’ as one of the new or TFEU areas changed to QMV. Although the change actually applies only to the current intergovernmental fields, the Summary sums it up as well as can be expected in an abbreviated form.
In my opinion, the White Paper and the Summary impart essentially correct information concerning this point to the Irish voters (and to other interested persons).
Would it be too much to ask campaigners to adhere to the same standards of objectivity with regard to facts? Nobody restricts the freedom to form positive or negative opinions about the consequences of the Lisbon Treaty, but it would certainly raise the standard of the debate and the possibility of informed choice if all sides adhered to basic requirements of truthful representation of facts and expressed opinions based on these facts.
The IIEA’s Consolidated and Annotated Version of the Treaties, by Peadar ó Broin, is available at:
http://www.epin.org/new/home
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, dedicates a paragraph on page 304 ‘Administrativt samarbete’ to administrative cooperation. The essential statement is that the provision is extended to police and criminal justice cooperation.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a fairly detailed description of Article 61g TFEU (ToL), renumbered Article 74 TFEU on page 190.
The government remarks on the express intent to limit this cooperation to administrative matters, which leaves operational cooperation outside the scope of the provision.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on page193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
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
We follow the relevant Lisbon Treaty provision during the treaty reform process and look at how Ireland informs its citizens ahead of the 12 June referendum as well as at what the governments of Sweden and Finland have commented.
***
Article 74 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 74 TFEU
(ex Article 66 TEC)
The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article 76, and after consulting the European Parliament.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61g TFEU (ToL), which became Article 74 TFEU after renumbering in the consolidated version. The referral in the original Lisbon Treaty was to Article 61i, which became Article 76 TFEU in the consolidated treaty (OJ 17.12.2007 C 308/58).
***
Article 66 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/69):
Article 66 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall take measures to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by this title, as well as between those departments and the Commission.
***
The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-164 (OJ 18.7.2003 C 169/58):
Article III-164 Draft Constitution
The Council of Ministers shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, without prejudice to Article III-165, and after consulting the European Parliament.
***
This is how Article III-263 of the Treaty establishing a Constitution for Europe looked as part of the IGC 2004 ‘acquis’ which formed the basis for the IGC 2007 leading to the Treaty of Lisbon (OJ 16.12.2004 C 310/114):
Article III-263 Constitution
The Council shall adopt European regulations to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Chapter, as well as between those departments and the Commission. It shall act on a Commission proposal, subject to Article III-264, and after consulting the European Parliament.
***
What has changed along the way, if anything?
The current Article 66 TEC covers the present Title 4 on visas, asylum, immigration and other policies related to free movement of persons. Since the European Convention’s draft Constitution the intention has been to extend the scope to cover the whole area of freedom, security and justice.
The more developed system (taxonomy) of legislative acts in the draft Constitution and the Constitution was, of course, lost as part of the ‘constitutional concept’, so the Treaty of Lisbon reverted to the nondescript ‘measures’ to be adopted.
The Council adopts the measures by qualified majority voting (QMV), since Article 74 TFEU does not spell out a requirement of unanimity. Currently unanimous decisions apply within the third pillar questions on police and judicial cooperation in criminal matters according to Article 34(2) TEU, but qualified majority voting in first pillar matters.
The referral to Article 76 TFEU means that the measures concerning administrative cooperation in the areas of judicial cooperation in criminal matters (Chapter 4) and police cooperation (Chapter 5) can be adopted either on a proposal from the Commission or on the initiative of a quarter of the member states. Presently each member state has the right of initiative in these intergovernmental areas based on Article 34(2) TEU, so it is possible to speak about a residual right of initiative.
***
Administrative cooperation in general is mentioned in the Treaty of Lisbon as one of the new areas, where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states. See the Council’s consolidated version, Article 6(1)(g) TFEU, page 67.
***
Irish guides and summaries
When governments or other official bodies provide guides or summaries for the general public concerning the Treaty of Lisbon, the main aim has to be to present essentially correct information about the main changes in a fairly reader-friendly manner.
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland states that administrative co-operation between Member States is also envisaged.
The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Summary mentions ‘Administrative cooperation within the area of freedom, security and justice after consulting the European Parliament’ as one of the new or TFEU areas changed to QMV. Although the change actually applies only to the current intergovernmental fields, the Summary sums it up as well as can be expected in an abbreviated form.
In my opinion, the White Paper and the Summary impart essentially correct information concerning this point to the Irish voters (and to other interested persons).
Would it be too much to ask campaigners to adhere to the same standards of objectivity with regard to facts? Nobody restricts the freedom to form positive or negative opinions about the consequences of the Lisbon Treaty, but it would certainly raise the standard of the debate and the possibility of informed choice if all sides adhered to basic requirements of truthful representation of facts and expressed opinions based on these facts.
The IIEA’s Consolidated and Annotated Version of the Treaties, by Peadar ó Broin, is available at:
http://www.epin.org/new/home
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, dedicates a paragraph on page 304 ‘Administrativt samarbete’ to administrative cooperation. The essential statement is that the provision is extended to police and criminal justice cooperation.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a fairly detailed description of Article 61g TFEU (ToL), renumbered Article 74 TFEU on page 190.
The government remarks on the express intent to limit this cooperation to administrative matters, which leaves operational cooperation outside the scope of the provision.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on page193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
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
Sunday, 27 April 2008
EU TFEU: Member states and national security cooperation
As a corollary to the exclusionary powers of each member state to provide ‘national security’, the Treaty of Lisbon spells out the freedom of the member states of the European Union to cooperate and coordinate their actions as the see fit, outside the EU structures and under their responsibility.
Is this a fruitful approach to enhancing the security for EU citizens?
***
Article 73 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 73 TFEU
It shall be open to Member States to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61f TFEU (ToL), which became Article 73 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 308/58).
***
The IGC 2007 Mandate mentioned the insertion of a provision about cooperation and coordination by member states in the field of national security as one of the modifications compared to the results of the IGC 2004 (Council document 11218/07, pages 7 – 8, point 19j). Point 2(a) of Annex 2 (page 15) spelt out the text of what then called the ‘following new second subparagraph’, but became Article 73 TFEU with almost identical wording.
Annex 1, point 4 (page 12), contained the amendments to be made in what was to become Article 4 TEU, including the sentence added to the end of the second paragraph: ‘In particular, national security remains the sole responsibility of each Member State’. – We mentioned the amended Article 4(2) TEU in yesterday’s post on Article 72 TFEU, when we wondered at what appeared to be a lack of discussion on the merits of this go-it-alone approach.
***
As the brainchild of the IGC 2007, Article 73 TFEU has no corresponding provision in the current treaties, the draft Constitution or the Constitutional Treaty.
***
Here are a few thoughts for you, dear readers, to develop further and possibly to discuss:
The member states of the European Union have introduced the term ‘national security’ into the EU treaties.
‘National security’ has been resolutely excluded from the scope of EU competences, by declaring it to be the sole responsibility of each member state, while ‘internal security’ is to some extent an area for EU action.
Member states may (as a meaningless consolation?) or may not cooperate or coordinate their actions between themselves in the field of ‘national security’, outside the EU structures and under their sole responsibility, as they see fit.
The only treaty obligations coming to my mind at this point seem to be of a negative kind and quite general in nature: to refrain from any measure which could jeopardise the attainment of the Union’s objectives (Article 4(3) TEU).
The troubling aspect is that ‘national security’ is centred on exclusionary turf thinking – to shut the EU and the other member states out from meddling in ‘our’ affairs – while evading the questions about what would be conducive to an enhanced level of security for citizens of the European Union.
Are the public goods delivered less important than the monopoly to handle or mishandle these affairs?
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Is this a fruitful approach to enhancing the security for EU citizens?
***
Article 73 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 73 TFEU
It shall be open to Member States to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security.
***
In Article 2, point 64, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 61f TFEU (ToL), which became Article 73 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 308/58).
***
The IGC 2007 Mandate mentioned the insertion of a provision about cooperation and coordination by member states in the field of national security as one of the modifications compared to the results of the IGC 2004 (Council document 11218/07, pages 7 – 8, point 19j). Point 2(a) of Annex 2 (page 15) spelt out the text of what then called the ‘following new second subparagraph’, but became Article 73 TFEU with almost identical wording.
Annex 1, point 4 (page 12), contained the amendments to be made in what was to become Article 4 TEU, including the sentence added to the end of the second paragraph: ‘In particular, national security remains the sole responsibility of each Member State’. – We mentioned the amended Article 4(2) TEU in yesterday’s post on Article 72 TFEU, when we wondered at what appeared to be a lack of discussion on the merits of this go-it-alone approach.
***
As the brainchild of the IGC 2007, Article 73 TFEU has no corresponding provision in the current treaties, the draft Constitution or the Constitutional Treaty.
***
Here are a few thoughts for you, dear readers, to develop further and possibly to discuss:
The member states of the European Union have introduced the term ‘national security’ into the EU treaties.
‘National security’ has been resolutely excluded from the scope of EU competences, by declaring it to be the sole responsibility of each member state, while ‘internal security’ is to some extent an area for EU action.
Member states may (as a meaningless consolation?) or may not cooperate or coordinate their actions between themselves in the field of ‘national security’, outside the EU structures and under their sole responsibility, as they see fit.
The only treaty obligations coming to my mind at this point seem to be of a negative kind and quite general in nature: to refrain from any measure which could jeopardise the attainment of the Union’s objectives (Article 4(3) TEU).
The troubling aspect is that ‘national security’ is centred on exclusionary turf thinking – to shut the EU and the other member states out from meddling in ‘our’ affairs – while evading the questions about what would be conducive to an enhanced level of security for citizens of the European Union.
Are the public goods delivered less important than the monopoly to handle or mishandle these affairs?
Ralf Grahn
Consolidated EU Treaties:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Saturday, 26 April 2008
EU TFEU: Member states and internal security
The UK government has stressed the importance of retaining full control of national security. But a quick view at Lisbon Treaty provisions concerning ‘internal security’ and ‘national security’ fails to unearth substantial evidence on or even discussion about how the government’s approach will enhance the security of British nationals (or EU citizens).
Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?
***
Article 72 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:
Article 64(1) TEC
1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Article 33 TEU
This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).
***
The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.
The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.
On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):
Article 4(2) TEU
“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.
***
Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.
This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »
The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.
The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’
What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):
“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”
On page 10, the UK government added some detail to its line on national security:
“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”
The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:
http://www.iiea.com/publicationxtest.php?publication_id=33
***
United Kingdom
Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.
What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’
The Comparative Table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf
The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:
‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’
(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)
The Library Research Paper 07/86 is accessible at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:
http://www.statewatch.org/euconstitution.htm
In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.
Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:
“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.
6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”
I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.
But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Surely, there must be people who have studied these matters more closely. Would it be too much to ask them to bring forward more developed thoughts than the questions raised in this brief introduction?
***
Article 72 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 72 TFEU
(ex Article 64(1) TEC and ex Article 33 TEU)
This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61e ToL, which became Article 72 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 64(1) of the Treaty establishing the European Community (TEC) and Article 33 of the Treaty on European Union (TEU), to be replaced, are found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/68 and 26, respectively:
Article 64(1) TEC
1. This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
Article 33 TEU
This title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security.
***
In line with its general aim to achieve a (more or less) unified structure for the area of freedom, security and justice, the European Convention amalgamated the two separate provisions for the two different pillars into one Article III-163 of the draft Treaty establishing a Constitution for Europe, with minute change to the wording (OJ 18.7.2003 C 169/58).
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and minor change in wording in Article III-262 (OJ 16.12.2004 C 310/114).
***
The European Convention initiated the abolition of the pillar structure in justice and home affairs, by proposing to bring TEC Title IV on visas, asylum, immigration and other policies related to the free movement of persons and TEU Title VI with provisions on police and judicial cooperation in criminal matters under one roof, namely the area of freedom, security and justice.
The merger of two provisions with the same contents into one Article 72 TFEU (Article 61e according to the original ToL numbering) is but the logical consequence of this move towards greater inner consistency.
On the other hand, the provision must be seen against the background of the two last sentences of Article 4(2) TEU, where ‘law and order’ is mentioned among essential state functions, and ‘national security’ is emphasised twice, both as an essential state function and as the sole responsibility of each member state (Council’s consolidation, document 6655/08, page 22):
Article 4(2) TEU
“2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
Strictly speaking, Article 72 TFEU looks like an unnecessary (part) repetition of the limitations on EU competences mentioned in Article 4(2) TEU.
***
Yesterday’s post ‘EU TFEU: Internal security committee’ referred the reader to the discussion in the UK House of Lords European Union Committee report on the impact of the Treaty of Lisbon, as regards the relative merits of terms ‘internal security’ and ‘national security’.
This discussion is not new, but part of an ongoing debate which surfaced at least during the work of the European Convention. Étienne de Poncins, who worked in the Secretariat of the Convention, commented on in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : un débat feutré a porté sur l’éventuel remplacement de la notion de « sédurité intérieure » par celle de « sécurité nationale », considérée comme plus vaste et plus protectrice des actions conduites par certains services spécialisés. Il n’a pas abouti, le texte ‘etant maintenu inchangé par rapport à l’actuel article 33 TUE. »
The view may have been correct at the time, but the amended TEU introduces and underlines the term ‘national security’ while the TFEU provision continues to speak of ‘internal security’.
The UK House of Commons Library Research Paper 08/09 ‘The Treaty of Lisbon: amendments to the Treaty on European Union’ (published 24 January 2008; page 22 - 23) stated that ‘of particular importance to the British Government, Lisbon adds that “in particular, national security remains the sole responsibility of each Member State”.’
What can be more official than a government statement on the British position as regards negotiations to reform and improve the European Union? In the FCO Command Paper ‘The Reform Treaty, The British Approach to the European Union Intergovernmental Conference, July 2007’, Prime Minister Gordon Brown saw fit to stress the following goals and achievements (page 1):
“Ahead of the June European Council, we set out our red lines to ensure that there would not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Mandate for the new amending Treaty meets these red lines. It ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy. In addition, the Treaty will make clear for the first time that national security remains a matter for Member States.”
On page 10, the UK government added some detail to its line on national security:
“The Government also secured an important exemption for national security from the scope of the Treaty: for the first time, the new Treaty will state, explicitly, that national security remains the sole responsibility of each Member State. This is an important clarification, and will ensure that the UK will retain full control of matters relating to national security.”
The importance of the UK retaining full control of matters relating to national security was underlined a few more times in the position paper, but without elucidating or evaluating how this go-it-alone approach would enhance the security of UK (or EU) citizens.
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland states that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available on the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
The upcoming 12 June 2008 Irish referendum on the Treaty of Lisbon has led to a lively debate about the advantages and disadvantages of the amending treaties as well the need for factual information. The National Forum of Europe serves both purposes:
http://www.forumoneurope.ie/
The National Forum on Europe has published ‘A Summary Guide to the Treaty of Lisbon (EU Reform Treaty)’, in English and Irish. The guides are available at:
http://www.forumoneurope.ie/eng/index.asp?docID=1489
The Institute of European Affairs did a sterling job in publishing consolidated versions of the treaties as amended by the Treaty of Lisbon, well ahead of the consolidations by the EU Council. They are available at:
http://www.iiea.com/publicationxtest.php?publication_id=33
***
United Kingdom
Since English is the main language of more than a half of the readers of this blog, there is cause to mention a few British resources on the Lisbon Treaty, too.
What changes? ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’, published by the UK foreign and Commonwealth Office (Command Paper 7311; published 21 January 2008), offers an opportunity for instant orientation with its annotations in telegraphic style. As an example, today’s Article 72 TFEU (61e ToL): ‘Unchanged from Article 33 TEU and Article 64(1) TEC.’
The Comparative Table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.pdf
The House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) mentions the amendments, sometimes with more detailed comments. Today’s provision received the following treatment:
‘Article 61E (Constitution Article III-262) confirms that this title will not affect the responsibility of Member States with regard to the maintenance of law and order and the safeguarding of internal security. It adds a new element not in the Constitution that Member States may decide to cooperate and coordinate among themselves in safeguarding national security.’
(Actually, the latter sentence referred to the following provision, Article 61f in the ToL version, renumbered Article 73 TFEU, at least in the form the treaty was signed.)
The Library Research Paper 07/86 is accessible at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
In Statewatch analysis, EU Reform Treaty: analysis 1: Version 3 JHA provisions (22 October 2007), Professor Steve Peers highlights the differences between the current treaties, the Constitutional Treaty and the Lisbon Treaty TFEU, and he offers short comments on the principal changes. Available together with the other analyses, which together cover all the treaty areas, through:
http://www.statewatch.org/euconstitution.htm
In the context of justice and home affairs (JHA), readers in Great Britain and Ireland (and Denmark) can turn ‘Analysis no. 4: British and Irish opt-outs from EU Justice and Home Affairs (JHA) law’ (Version 2: 26 October 2007), where Peers sorts out the complex special arrangements for the countries that remain (partly) outside this emerging core policy area.
Since the treaty provision we look at today offers nothing more than the merger of two current provisions, Peers comments briefly: ‘This Article is identical to the current Article 33 TEU and Afticle 64(1) TEC.’
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the area of freedom, security and justice at length (Chapter 6, pages 110 – 177).
The report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
The Committee dealt with the terms ‘internal security’ and ‘national security’ on page 157 to 159, and it ended up with the following conclusions:
“6.242. It may be significant that the Treaties for the first time make clear that national security is a matter solely for the Member States.
6.243. It is unfortunate that a number of provisions of the Treaties refer to “internal security” when the meaning of that expression is unclear.”
I found no substantial evaluation of the government’s goal to exclude or limit the competence of the European Union with regard to security, either internal or national.
But perhaps someone knows where to find the reasons, what they are and how well they stand up to scrutiny?
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Friday, 25 April 2008
EU reintroducing the death penalty?
Are these the words you would associate with an organisation bent on reintroducing the death penalty?
Here is the text from the Council of the European Union:
“COUNCIL OF THE EUROPEAN UNION
EN
Brussels, 25 April 2008
8767/08 (Presse 110)
P 57
Declaration by the Presidency on behalf of the EU concerning the death penalty in the USA
On September 11, 2007 the Ambassadors of the European Union in Washington appealed to the Governor of Kentucky, the Honorable Ernie Fletcher to spare the life of Mr Ralph Baze, whose execution would have broken a de facto moratorium that was in place within the State of Kentucky since 1999.
On 16 April 2008, the United States Supreme Court issued a ruling in Mr Baze's case which will allow the continued use of lethal injection as practiced by the State of Kentucky. The European Union notes with disappointment the United State Supreme Court's decision in this case and renews its call on Governor Fletcher to commute the
sentence of Mr. Baze.
The EU reiterates its longstanding position against the death penalty in all circumstances and accordingly strives to achieve its universal abolition, seeking a global moratorium on the death penalty as the first step. We believe that the elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights.
The EU recalls that on 18 December 2007, the United Nations General Assembly adopted a resolution on a Moratorium on the use of the death penalty, which explicitly calls upon all States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing the death penalty
The EU recalls that any miscarriage or failure of justice in the application of capital punishment represents an irreparable and irreversible loss of human life. No legal system is immune from mistakes and there is no reliable evidence that the death penalty provides added value in terms of deterrence.
In light of this US Supreme Court decision, we strongly encourage the continuation of the de facto moratorium in place within the United States allowing the ongoing debate on the complex issues involved to be thoroughly deliberated.
The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Azerbaijan align themselves with this declaration.
* Croatia and the former Yugoslav Republic of Macedonia continue to be part of the
Stabilisation and Association Process.”
***
The pan-European Council of Europe has pioneered the work to abolish the death penalty, and membership in the Council of Europe can be seen as part of the admission criteria for membership in the European Union. The goal has been to abolish the death penalty once and for all, but the work has advanced in stages.
First came the abolition of the death penalty in general, but left the possibility for member states to use it in war or when war was imminent.
***
The EU Charter of Human Rights was prepared by the first EU Convention led by Roman Herzog, following the conclusions of the European Council in Cologne in 1999. The Charter was declared politically binding by the EU institutions in Nice in December 2000.
***
The Council of Europe Protocol number 13 on the abolition of the death penalty in all circumstances was signed 3 May 2002, and it entered into force 1 July 2003 after ten ratifications, just days before the European Convention published its final text of the draft Constitution. Anyway, the European Convention adopted the 2000 Charter and the Explanations with mainly technical modifications.
The Treaty establishing a Constitution for Europe took over the Charter inserted into the Treaty (as Part II), with technical adjustments and some limitations concerning its scope. Many of the EU member states ratified the Council of Europe Protocol 13 later, the latest entry into force seems to be France, 1 February 2008.
***
Today, there are still three EU members which have signed, but not ratified the Protocol numbered 13 on the abolition under all circumstances: Italy, Poland and Spain.
In other words, it has not been possible for the EU to update its reference to the European Convention on Human Rights or the Explanations (basically by the first European Union Convention in 2000), even in the context of the Treaty of Lisbon, because it would not have been covered by all members by the way of the additions (protocols) to the Human Rights Convention of the Council of Europe.
***
But if every single member state of the European Union is not yet legally bound by the Protocol 13 on the total abolition of capital punishment, it does not mean that the European Union is about to make a U-turn and start reintroducing the death penalty.
***
To conclude: 24 out of 27 member states are individually bound by their commitments to the European Human Rights Convention. There has been no opportunity to update the EU Charter or its Explanations. The EU as an organisation is dead set against the death penalty. The press release above is only the latest manifestation of the political will of the European Union.
To allege that the European Union has, on purpose, left a backdoor open in the Constitutional Treaty or the Treaty of Lisbon with the intent to reintroduce the death penalty, is contrary to facts and unsupported in law.
Ralf Grahn
P.S. Correction, 25 April 2008: There seems to be a fourth laggard among the EU member states in ratifying Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances: Latvia. - So 23 have ratified and four are still lagging behind. I hope that I got it right this time around. :-)
Here is the text from the Council of the European Union:
“COUNCIL OF THE EUROPEAN UNION
EN
Brussels, 25 April 2008
8767/08 (Presse 110)
P 57
Declaration by the Presidency on behalf of the EU concerning the death penalty in the USA
On September 11, 2007 the Ambassadors of the European Union in Washington appealed to the Governor of Kentucky, the Honorable Ernie Fletcher to spare the life of Mr Ralph Baze, whose execution would have broken a de facto moratorium that was in place within the State of Kentucky since 1999.
On 16 April 2008, the United States Supreme Court issued a ruling in Mr Baze's case which will allow the continued use of lethal injection as practiced by the State of Kentucky. The European Union notes with disappointment the United State Supreme Court's decision in this case and renews its call on Governor Fletcher to commute the
sentence of Mr. Baze.
The EU reiterates its longstanding position against the death penalty in all circumstances and accordingly strives to achieve its universal abolition, seeking a global moratorium on the death penalty as the first step. We believe that the elimination of the death penalty is fundamental to the protection of human dignity, and to the progressive development of human rights.
The EU recalls that on 18 December 2007, the United Nations General Assembly adopted a resolution on a Moratorium on the use of the death penalty, which explicitly calls upon all States that still maintain the death penalty to establish a moratorium on executions with a view to abolishing the death penalty
The EU recalls that any miscarriage or failure of justice in the application of capital punishment represents an irreparable and irreversible loss of human life. No legal system is immune from mistakes and there is no reliable evidence that the death penalty provides added value in terms of deterrence.
In light of this US Supreme Court decision, we strongly encourage the continuation of the de facto moratorium in place within the United States allowing the ongoing debate on the complex issues involved to be thoroughly deliberated.
The Candidate Countries Turkey, Croatia* and the former Yugoslav Republic of Macedonia*, the Countries of the Stabilisation and Association Process and potential candidates Bosnia and Herzegovina, Montenegro, Serbia, and the EFTA countries Iceland, Liechtenstein and Norway, members of the European Economic Area, as well as Ukraine, the Republic of Moldova and Azerbaijan align themselves with this declaration.
* Croatia and the former Yugoslav Republic of Macedonia continue to be part of the
Stabilisation and Association Process.”
***
The pan-European Council of Europe has pioneered the work to abolish the death penalty, and membership in the Council of Europe can be seen as part of the admission criteria for membership in the European Union. The goal has been to abolish the death penalty once and for all, but the work has advanced in stages.
First came the abolition of the death penalty in general, but left the possibility for member states to use it in war or when war was imminent.
***
The EU Charter of Human Rights was prepared by the first EU Convention led by Roman Herzog, following the conclusions of the European Council in Cologne in 1999. The Charter was declared politically binding by the EU institutions in Nice in December 2000.
***
The Council of Europe Protocol number 13 on the abolition of the death penalty in all circumstances was signed 3 May 2002, and it entered into force 1 July 2003 after ten ratifications, just days before the European Convention published its final text of the draft Constitution. Anyway, the European Convention adopted the 2000 Charter and the Explanations with mainly technical modifications.
The Treaty establishing a Constitution for Europe took over the Charter inserted into the Treaty (as Part II), with technical adjustments and some limitations concerning its scope. Many of the EU member states ratified the Council of Europe Protocol 13 later, the latest entry into force seems to be France, 1 February 2008.
***
Today, there are still three EU members which have signed, but not ratified the Protocol numbered 13 on the abolition under all circumstances: Italy, Poland and Spain.
In other words, it has not been possible for the EU to update its reference to the European Convention on Human Rights or the Explanations (basically by the first European Union Convention in 2000), even in the context of the Treaty of Lisbon, because it would not have been covered by all members by the way of the additions (protocols) to the Human Rights Convention of the Council of Europe.
***
But if every single member state of the European Union is not yet legally bound by the Protocol 13 on the total abolition of capital punishment, it does not mean that the European Union is about to make a U-turn and start reintroducing the death penalty.
***
To conclude: 24 out of 27 member states are individually bound by their commitments to the European Human Rights Convention. There has been no opportunity to update the EU Charter or its Explanations. The EU as an organisation is dead set against the death penalty. The press release above is only the latest manifestation of the political will of the European Union.
To allege that the European Union has, on purpose, left a backdoor open in the Constitutional Treaty or the Treaty of Lisbon with the intent to reintroduce the death penalty, is contrary to facts and unsupported in law.
Ralf Grahn
P.S. Correction, 25 April 2008: There seems to be a fourth laggard among the EU member states in ratifying Protocol 13 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the abolition of the death penalty in all circumstances: Latvia. - So 23 have ratified and four are still lagging behind. I hope that I got it right this time around. :-)
EU TFEU: Internal security committee
Is this the new Ministry of the Interior of the European Union, with its henchmen ready to quash the cherished liberties of citizens of the member states in order to establish the Orwellian 1984 state?
I regret to announce that, yet again, conspiracy theorists would have to clear some virgin fields for scare-mongering, if the citizens of the European Union took the trouble to read the contents of the Treaty of Lisbon as regards justice and home affairs (JHA), or the area of freedom, security and justice (FSJ) as it is called, on the topic of the new internal security committee.
Regretfully? Well, life would be so much more colourful if the conspiracy theories were true.
***
Article 71 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 71TFEU
(ex Article 36 TEU)
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61d ToL, which became Article 71 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 36 of the Treaty on European Union (TEU), to be replaced, is found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/28:
Article 36 TEU
1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to:
— give opinions for the attention of the Council, either at the Council's request or on its own initiative,
— contribute, without prejudice to Article 207 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article 29.
2. The Commission shall be fully associated with the work in the areas referred to in this title.
***
The European Convention proposed the following Article III-162 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-162 Draft Constitution
A standing committee shall be set up within the Council of Ministers in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minor change in Article III-261 (OJ 16.12.2004 C 310/114):
Article III-261 Constitution
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
The European Convention clarified the role of the committee by spelling out that its remit was internal security, instead of the current reference to ‘areas referred to in Article 29’, namely third pillar police and judicial cooperation in criminal matters.
The Constitutional Treaty and the Treaty of Lisbon brought only technical modifications.
***
Étienne de Poncins commented on the work of the European Convention in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : l’institution de ce comité est une des nouveautés proposées par la Convention dans la domaine de l’espace de liberté, de securité et de justice. Elle fait suite du constat de l’éclatment actuel des fonctions de coordination opérationelles entre les anciens piliers « communautaire » et « Justice et affaires intérieures » (JAI).
He then added a more audacious perspective, which has been more than fully extrapolated by some:
« Ce comité pourrait donner naissance à une structure opérationnelle préfigurant un état-major de police au niveau de l’Union européenne. Sa compétence devrait couvrir l’ensemble du champ de l’espace de l’espace de liberté, de securité et de justice, c’est-à-dire également la composante de contrôle des frontières extérieures. »
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland mentions the new standing committee, but emphasises that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available at the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
***
United Kingdom
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the new provision, Article 71 TFEU, setting up a standing committee within the Council. The UK government and the House Committee seemed to share a preference for the new treaty term ‘national security’ to underline areas that are the sole responsibility of the member states, in contrast to the phrase ‘internal security’, which could cover internal security both within member states and within the European Union. Se pages 158 and 159 (points 6.238 to 6.243).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Professor Steve Peers remarks that ‘This committee can be regarded as a successor to the current Article 36 Committee, which prepares the Council’s policing and criminal law work, although the new committee will have a wholly operational role’. – In Statewatch analysis, EU Reorm Treat: analysis 1: Version 3 JHA provisions (22 October 2007). Available together with the other analyses through:
http://www.statewatch.org/euconstitution.htm
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) describes the purpose and contents Article 61d TFEU (ToL), renumbered Article 71 TFEU on page 189.
The government remarks that it is the task of the committee to facilitate the coordination of member states’ action. The new committee is not intended to limit the powers of the committee of the permanent representatives of the governments of the member states (Coreper), as pointed out in Article 207 TFEU (ToL), now renumbered Article 240 TFEU (and found on page 202 of the Council’s consolidated version).
The remit of the new committee covers all questions concerning internal security. Thus, it is wider than that of the present Article 36 TEU committee, competent to deal only with questions pertaining to Article 29 TEU. Thus, the new committee can deal with, for instance, border control, asylum or immigration, although these questions are currently dealt with at committee level (SCIFA).
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on pages 192 and 193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, mentions that the national parliaments and the European Parliament are to be kept informed about the operational committee (page 300).
Evaluating the results of the treaty negotiations, the Swedish government stresses the strategic national importance for Sweden of the continued development of the European police cooperation. The combat against for example trafficking in human beings, the illegal drugs trade and terrorism require well-working police and customs cooperation. The Treaty of Lisbon facilitates cross-border cooperation (page 326).
In a section on page 327, the Swedish government discusses the committee for operational cooperation. The government stresses the idea to focus on Union level strategic questions, and it mentions the role of the committee in the context of the solidarity clause. Additionally, the committee can serve as a forum for the exchange of experiences of work at the national level.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of the internal security committee, and the European Parliament and national Parliaments shall be kept informed of the proceedings, but the new permanent committee on internal security is explicitly set up within the Council, namely intergovernmentally.
While ‘internal security’ can mean both the protection of national citizens and of EU citizens, the proposed structures mean no wholesale adoption of a ‘Community’ approach to justice and home affairs, only a gradual realisation of the need for enhanced cooperation.
***
The committee on internal security looks like a parallel structure to the political and security committee covering the common foreign and security policy (mentioned in Articles 38 and 43 TEU and in Article 222 TFEU, following the numbering of the Council’s consolidated version).
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
I regret to announce that, yet again, conspiracy theorists would have to clear some virgin fields for scare-mongering, if the citizens of the European Union took the trouble to read the contents of the Treaty of Lisbon as regards justice and home affairs (JHA), or the area of freedom, security and justice (FSJ) as it is called, on the topic of the new internal security committee.
Regretfully? Well, life would be so much more colourful if the conspiracy theories were true.
***
Article 71 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 97), with the location of the provision added from the table of equivalences (page 460 to 462):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 1 ‘General provisions’
Article 71TFEU
(ex Article 36 TEU)
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article 240, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording (as above) of the new Article 61d ToL, which became Article 71 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
Article 36 of the Treaty on European Union (TEU), to be replaced, is found in the latest consolidated version of the treaties, published in the Official Journal, OJ 29.12.2006 C 321 E/28:
Article 36 TEU
1. A Coordinating Committee shall be set up consisting of senior officials. In addition to its coordinating role, it shall be the task of the Committee to:
— give opinions for the attention of the Council, either at the Council's request or on its own initiative,
— contribute, without prejudice to Article 207 of the Treaty establishing the European Community, to the preparation of the Council's discussions in the areas referred to in Article 29.
2. The Commission shall be fully associated with the work in the areas referred to in this title.
***
The European Convention proposed the following Article III-162 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-162 Draft Constitution
A standing committee shall be set up within the Council of Ministers in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-247, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies and agencies concerned may be involved in the proceedings of this committee. The European Parliament and Member States' national parliaments shall be kept informed of the proceedings.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minor change in Article III-261 (OJ 16.12.2004 C 310/114):
Article III-261 Constitution
A standing committee shall be set up within the Council in order to ensure that operational cooperation on internal security is promoted and strengthened within the Union. Without prejudice to Article III-344, it shall facilitate coordination of the action of Member States' competent authorities. Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of this committee. The European Parliament and national Parliaments shall be kept informed of the proceedings.
***
The European Convention clarified the role of the committee by spelling out that its remit was internal security, instead of the current reference to ‘areas referred to in Article 29’, namely third pillar police and judicial cooperation in criminal matters.
The Constitutional Treaty and the Treaty of Lisbon brought only technical modifications.
***
Étienne de Poncins commented on the work of the European Convention in his book ‘Vers une Constitution européenne’ (Éditions 10/18, 2003), page 357:
« Commentaire : l’institution de ce comité est une des nouveautés proposées par la Convention dans la domaine de l’espace de liberté, de securité et de justice. Elle fait suite du constat de l’éclatment actuel des fonctions de coordination opérationelles entre les anciens piliers « communautaire » et « Justice et affaires intérieures » (JAI).
He then added a more audacious perspective, which has been more than fully extrapolated by some:
« Ce comité pourrait donner naissance à une structure opérationnelle préfigurant un état-major de police au niveau de l’Union européenne. Sa compétence devrait couvrir l’ensemble du champ de l’espace de l’espace de liberté, de securité et de justice, c’est-à-dire également la composante de contrôle des frontières extérieures. »
***
Ireland
In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 10), the Department of Foreign Affairs of Ireland mentions the new standing committee, but emphasises that the responsibilities of the member states for the maintenance of law and order and internal security are unaffected by the Reform Treaty.
The White Paper is an option for those who want to find out the main points of the Lisbon Treaty in some detail, but still in a readable form. The White Paper and a wealth other information in English and Gaelic is available at the web page ‘The EU Reform Treaty’ of the Department of Foreign Affairs:
http://www.reformtreaty.ie/
***
United Kingdom
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses the new provision, Article 71 TFEU, setting up a standing committee within the Council. The UK government and the House Committee seemed to share a preference for the new treaty term ‘national security’ to underline areas that are the sole responsibility of the member states, in contrast to the phrase ‘internal security’, which could cover internal security both within member states and within the European Union. Se pages 158 and 159 (points 6.238 to 6.243).
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Professor Steve Peers remarks that ‘This committee can be regarded as a successor to the current Article 36 Committee, which prepares the Council’s policing and criminal law work, although the new committee will have a wholly operational role’. – In Statewatch analysis, EU Reorm Treat: analysis 1: Version 3 JHA provisions (22 October 2007). Available together with the other analyses through:
http://www.statewatch.org/euconstitution.htm
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) describes the purpose and contents Article 61d TFEU (ToL), renumbered Article 71 TFEU on page 189.
The government remarks that it is the task of the committee to facilitate the coordination of member states’ action. The new committee is not intended to limit the powers of the committee of the permanent representatives of the governments of the member states (Coreper), as pointed out in Article 207 TFEU (ToL), now renumbered Article 240 TFEU (and found on page 202 of the Council’s consolidated version).
The remit of the new committee covers all questions concerning internal security. Thus, it is wider than that of the present Article 36 TEU committee, competent to deal only with questions pertaining to Article 29 TEU. Thus, the new committee can deal with, for instance, border control, asylum or immigration, although these questions are currently dealt with at committee level (SCIFA).
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on pages 192 and 193.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, mentions that the national parliaments and the European Parliament are to be kept informed about the operational committee (page 300).
Evaluating the results of the treaty negotiations, the Swedish government stresses the strategic national importance for Sweden of the continued development of the European police cooperation. The combat against for example trafficking in human beings, the illegal drugs trade and terrorism require well-working police and customs cooperation. The Treaty of Lisbon facilitates cross-border cooperation (page 326).
In a section on page 327, the Swedish government discusses the committee for operational cooperation. The government stresses the idea to focus on Union level strategic questions, and it mentions the role of the committee in the context of the solidarity clause. Additionally, the committee can serve as a forum for the exchange of experiences of work at the national level.
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Representatives of the Union bodies, offices and agencies concerned may be involved in the proceedings of the internal security committee, and the European Parliament and national Parliaments shall be kept informed of the proceedings, but the new permanent committee on internal security is explicitly set up within the Council, namely intergovernmentally.
While ‘internal security’ can mean both the protection of national citizens and of EU citizens, the proposed structures mean no wholesale adoption of a ‘Community’ approach to justice and home affairs, only a gradual realisation of the need for enhanced cooperation.
***
The committee on internal security looks like a parallel structure to the political and security committee covering the common foreign and security policy (mentioned in Articles 38 and 43 TEU and in Article 222 TFEU, following the numbering of the Council’s consolidated version).
Ralf Grahn
EU Treaty materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
Thursday, 24 April 2008
EU TFEU: Peer review in the area of freedom, security and justice
In EU justice and home affairs (JHA), or the area of freedom, security and justice (FSJ), the Treaty of Lisbon brings about some real change, at least for the 24 member states committed to more effective decision-making in this evolving core policy area.
But is the special intergovernmental JHA or FSJ peer review an indication that the governments believe at least as much in a soft-pedalling approach as in European legislation to achieve a free flow of justice within the European Union?
***
Article 70 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), 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 70 TFEU
Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording of the new Article 61c, which became Article 70 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties. Cf. TFEU Table of equivalences, OJ 17.12.2007 C 306/209.
***
The European Convention proposed the following Article III-161 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-161 Draft Constitution
Without prejudice to Articles III-265 to III-267, the Council of Ministers may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and Member States' national Parliaments shall be informed of the content and results of the evaluation.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minimal stylistic change in Article III-260 (OJ 16.12.2004 C 310/113).
***
Since the proposed Article 70 TFEU is essentially (with technical modifications) the same as Article III-260 of the Constitutional Treaty, we can conclude that the new provision is in substance the work of the broadly based European Convention, although more than five years will have been wasted before its labours bear fruit, if the Treaty of Lisbon enters into force according to the wishes of all member state governments and a growing number of ratifying parliaments.
If we take the agreement on the unsatisfactory Treaty of Nice as our starting point for the treaty reform cycle, the corresponding time is longer: about eight years.
***
What does the new Artilcle 70 TFEU mean?
As a name ‘objective and impartial evaluation of the implementation of the Union policies referred to in this Title’ is even more unwieldy than that of its sibling the ‘open method of coordination’ (OMC).
The Wikipedia article ‘Open Method of Coordination’ could serve to give the reader a view of what to expect from this kind of ‘soft law’ approach, based on voluntary intergovernmental cooperation (latest update 6 December 2007):
http://en.wikipedia.org/wiki/Open_Method_of_Coordination
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Fourth edition, Oxford University Press, 2007) discusses the open method of coordination in the context of Chapter 5 ‘New forms of governance’ (page 144 to 166).
***
Ireland: In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland speaks of ‘peer review’, a term gratefully adopted by this writer.
***
The basically intergovernmental nature of the peer review – in spite of proposals from and collaboration by the Commission – is shown by the language of the provision, including the sentence on the parliaments: ‘The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.’
***
United Kingdom: Chapter 11: national parliaments – the democratic challenge, of the House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessmen, Volume I: Report’ (HL Papere 62-I, published 13 March 2008) is a detailed discussion of the role of national parliaments, with a fleeting mention of ‘Taking part in evaluation of EU policies in the area of freedom, security and justice (see also new Article 70 TFEU)’, on page 234. The Peers' review is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Finland: The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) follows the Nordic tradition of government proposals explaining each amendment. The description of Article 61c ToL, renumbered Article 70 TFEU, is found on page 189. The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
Finnish government proposals and legislation are available in Swedish. The same ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), with the relevant description on page 192, can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
The ratification bill is now at the committee stage, with the Foreign Affairs Committee expecting opinion from other parliamentary committees by 9 May 2008. Ratification for the Finnish mainland is expected before the summer recess.
The autonomous province of the Åland Islands with a special status (Protocol) within the EU may protract its approval or rejection of the Lisbon Treaty while trying to extract concessions from the Finnish government and exploring the consequences of a possible rejection (including a future outside the European Union).
***
Sweden was among the one third of EU member states which either suspended ratification of the Constitutional Treaty or where the ratification failed (France, the Netherlands).
While soon a third of the member states has ratified the Treaty of Lisbon, Sweden started a consultation process with the hefty paper ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007.
The consultation process ended 25 March 2008, and the government is mulling over the responses and preparing its ratification bill. As far as I have seen, the Swedish government has yet to announce a clear date for issuing the bill. On a web page dated 31 March 2008 ‘Ett nytt fördrag för EU’ the government reiterates that parliamentary ratification will apply, and obliquely mentions that ‘the idea is’ that the new treaty will enter into force in January 2009:
http://www.regeringen.se/sb/d/9242/a/89146
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
Back to today’s provision, which is briefly mentioned on page 300 of ‘Lissabonfördraget’.
***
‘Without prejudice to Articles 258, 259 and 260’ refers to provisions of the consolidated TFEU dealing with infringement procedures against member states against failure to fulfil treaty obligations (Council document 6655/08, pages 210-211).
This in itself means that legislative acts are possible in the EU area of freedom, security and justice, and that peer review is not, on the whole, an alternative to EU legislation, but a complement.
Time will tell how the relations between intergovernmental peer review and EU legislation will play out in justice and home affairs, known as the area of freedom, security and justice.
Ralf Grahn
EU Treaty sources:
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
But is the special intergovernmental JHA or FSJ peer review an indication that the governments believe at least as much in a soft-pedalling approach as in European legislation to achieve a free flow of justice within the European Union?
***
Article 70 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), 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 70 TFEU
Without prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the Commission, adopt measures laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference presented the wording of the new Article 61c, which became Article 70 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties. Cf. TFEU Table of equivalences, OJ 17.12.2007 C 306/209.
***
The European Convention proposed the following Article III-161 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
Article III-161 Draft Constitution
Without prejudice to Articles III-265 to III-267, the Council of Ministers may, on a proposal from the Commission, adopt European regulations or decisions laying down the arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Chapter by Member States' authorities, in particular in order to facilitate full application of the principle of mutual recognition. The European Parliament and Member States' national Parliaments shall be informed of the content and results of the evaluation.
***
The Treaty establishing a Constitution for Europe took over the draft text with only different numbering of the provision and the referrals and minimal stylistic change in Article III-260 (OJ 16.12.2004 C 310/113).
***
Since the proposed Article 70 TFEU is essentially (with technical modifications) the same as Article III-260 of the Constitutional Treaty, we can conclude that the new provision is in substance the work of the broadly based European Convention, although more than five years will have been wasted before its labours bear fruit, if the Treaty of Lisbon enters into force according to the wishes of all member state governments and a growing number of ratifying parliaments.
If we take the agreement on the unsatisfactory Treaty of Nice as our starting point for the treaty reform cycle, the corresponding time is longer: about eight years.
***
What does the new Artilcle 70 TFEU mean?
As a name ‘objective and impartial evaluation of the implementation of the Union policies referred to in this Title’ is even more unwieldy than that of its sibling the ‘open method of coordination’ (OMC).
The Wikipedia article ‘Open Method of Coordination’ could serve to give the reader a view of what to expect from this kind of ‘soft law’ approach, based on voluntary intergovernmental cooperation (latest update 6 December 2007):
http://en.wikipedia.org/wiki/Open_Method_of_Coordination
Paul Craig and Gráinne de Búrca: EU Law, Text, Cases, and Materials (Fourth edition, Oxford University Press, 2007) discusses the open method of coordination in the context of Chapter 5 ‘New forms of governance’ (page 144 to 166).
***
Ireland: In its April 2008 White Paper ‘The EU Reform Treaty’ (page 67, point 9), the Department of Foreign Affairs of Ireland speaks of ‘peer review’, a term gratefully adopted by this writer.
***
The basically intergovernmental nature of the peer review – in spite of proposals from and collaboration by the Commission – is shown by the language of the provision, including the sentence on the parliaments: ‘The European Parliament and national Parliaments shall be informed of the content and results of the evaluation.’
***
United Kingdom: Chapter 11: national parliaments – the democratic challenge, of the House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessmen, Volume I: Report’ (HL Papere 62-I, published 13 March 2008) is a detailed discussion of the role of national parliaments, with a fleeting mention of ‘Taking part in evaluation of EU policies in the area of freedom, security and justice (see also new Article 70 TFEU)’, on page 234. The Peers' review is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Finland: The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) follows the Nordic tradition of government proposals explaining each amendment. The description of Article 61c ToL, renumbered Article 70 TFEU, is found on page 189. The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
Finnish government proposals and legislation are available in Swedish. The same ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), with the relevant description on page 192, can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
The ratification bill is now at the committee stage, with the Foreign Affairs Committee expecting opinion from other parliamentary committees by 9 May 2008. Ratification for the Finnish mainland is expected before the summer recess.
The autonomous province of the Åland Islands with a special status (Protocol) within the EU may protract its approval or rejection of the Lisbon Treaty while trying to extract concessions from the Finnish government and exploring the consequences of a possible rejection (including a future outside the European Union).
***
Sweden was among the one third of EU member states which either suspended ratification of the Constitutional Treaty or where the ratification failed (France, the Netherlands).
While soon a third of the member states has ratified the Treaty of Lisbon, Sweden started a consultation process with the hefty paper ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007.
The consultation process ended 25 March 2008, and the government is mulling over the responses and preparing its ratification bill. As far as I have seen, the Swedish government has yet to announce a clear date for issuing the bill. On a web page dated 31 March 2008 ‘Ett nytt fördrag för EU’ the government reiterates that parliamentary ratification will apply, and obliquely mentions that ‘the idea is’ that the new treaty will enter into force in January 2009:
http://www.regeringen.se/sb/d/9242/a/89146
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
Back to today’s provision, which is briefly mentioned on page 300 of ‘Lissabonfördraget’.
***
‘Without prejudice to Articles 258, 259 and 260’ refers to provisions of the consolidated TFEU dealing with infringement procedures against member states against failure to fulfil treaty obligations (Council document 6655/08, pages 210-211).
This in itself means that legislative acts are possible in the EU area of freedom, security and justice, and that peer review is not, on the whole, an alternative to EU legislation, but a complement.
Time will tell how the relations between intergovernmental peer review and EU legislation will play out in justice and home affairs, known as the area of freedom, security and justice.
Ralf Grahn
EU Treaty sources:
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
Wednesday, 23 April 2008
EU TFEU: National parliaments in criminal matters and police cooperation
In EU criminal matters and police cooperation the national parliaments are given a lower than usual threshold to force a rethink of a legislative proposal on the grounds of subsidiarity, the principle meaning that decisions should be taken as closely as possible to the citizens of the European Union.
The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), 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 69 TFEU
National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):
Article III-160 Draft Constitution
1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.
Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.
***
The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):
Article III-259 Constitution
National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.
***
Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.
First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.
At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).
***
Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).
The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):
“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”
***
Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.
The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.
Ralf Grahn
EU Treaty sources:
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
The EU Treaty of Lisbon moves criminal matters and police cooperation from the ntergovernmental third pillar to become more or less normal internal policy areas.
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), 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 69 TFEU
National Parliaments ensure that the proposals and legislative initiatives submitted under Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
In Article 2, point 64, of the Treaty of Lisbon the intergovernmental conference was content to present the wording of the new Article 61b, which became Article 69 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
The European Convention proposed the following Article III-160 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/57):
Article III-160 Draft Constitution
1. Member States' national Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements in the Protocol on the application of the principles of subsidiarity and proportionality.
Member States' national Parliaments may participate in the evaluation mechanisms contained in Article III-161 and in the political monitoring of Europol and the evaluation of Eurojust's activities in accordance with Articles III-177 and III-174.
***
The IGC 2004 split the first paragraph of the draft into an Article III-259 with small stylistic changes (OJ 16.12.2004 C 310/113):
Article III-259 Constitution
National Parliaments shall ensure that the proposals and legislative initiatives submitted under Sections 4 and 5 of this Chapter comply with the principle of subsidiarity, in accordance with the arrangements laid down by the Protocol on the application of the principles of subsidiarity and proportionality.
***
We can see that the meat was served by the European Convention, tranched by the IGC 2004 and seasoned by the IGC 2007 to accommodate a sensitive British palate by removing the abhorrent ‘shall’. In addition a few necessary technical adjustments were made.
***
Actually, a provision like this is more like a food coupon than a real meal, because it only holds out the promise of something substantial through referrals to other provisions.
First, we are sent off to check out the substance of the offering by looking up the subject matter covered. As pointed out in Article 2, point 63, of the Treaty of Lisbon, Chapter 4 is called ‘Judicial cooperation in criminal matters’ and Chapter 5 concerns ‘Police cooperation’.
At this point we can conclude that some sort of special arrangement is reserved for the two areas shifted from the intergovernmental third pillar (TEU) to what is presently known as the first or Community pillar (TEC).
***
Second, the procedures are laid down in the Protocol on the application of the principles of subsidiarity and proportionality.
Protocol (No 2) on the application of the principles of subsidiarity and proportionality has been honed at every turn, but we are content to look at its coming incarnation, as envisioned by the Treaty of Lisbon in the provisional consolidated version published by the Council (document 6655/08; page 266 to 269).
The difference between the subsidiarity control of draft legislative acts in general and those pertaining to criminal matters or police cooperation appears from Article 7(2) of the Protocol (page 268):
“2. Where reasoned opinions on a draft legislative act's non-compliance with the principle of subsidiarity represent at least one third of all the votes allocated to the national Parliaments in accordance with the second subparagraph of paragraph 1, the draft must be reviewed. This threshold shall be a quarter in the case of a draft legislative act submitted on the basis of Article 76 of the Treaty on the Functioning of the European Union on the area of freedom, security and justice.
After such review, the Commission or, where appropriate, the group of Member States, the European Parliament, the Court of Justice, the European Central Bank or the European Investment Bank, if the draft legislative act originates from them, may decide to maintain, amend or withdraw the draft. Reasons must be given for this decision.”
***
Ordinarily, the threshold for rethinking a legislative proposal is one third of the votes given to the national parliaments, but in the case of draft legislative acts submitted on the basis of Article 76 TFEU, namely acts referred to in Chapters 4 (criminal matters) and 5 (police cooperation) and proposed by the Commission or on the initiative of a quarter of the member states, it is only a quarter of the votes allocated.
The special subsidiarity control threshold for proposals concerning Chapter 4 ‘Judicial cooperation in criminal matters’ and Chapter 5 ‘Police cooperation’ serves as a reminder of their third pillar origins.
Ralf Grahn
EU Treaty sources:
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, 22 April 2008
EU TFEU: Strategic guidelines for freedom, security and justice
The European Council is arguably the most powerful institution – and becoming a real one – according to the Treaty of Lisbon. Tasking the European Council with issuing strategic guidelines within the area of freedom, security and justice (FSJ) does nothing to diminish its role.
We look at the second new Lisbon Treaty provision on justice and home affairs (JHA).
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), 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 68 TFEU
The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.
***
The intergovernmental conference was content to present the wording of the new Article 61a, which became Article 68 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
In Article III-159 of the draft Treaty establishing a Constitution for Europe, the European Convention proposed exactly the wording now adopted by the Lisbon Treaty (OJ 18.7.2003 C 169/57).
***
Article III-258 of the Treaty establishing a Constitution for Europe passed on the proposal, unchanged (OJ 16.12.2004 C 310/113).
***
In other words, we have an unbroken line from the European Convention to the TFEU, with only a number of years wasted in between.
***
The European Council, arguably the most important institution of the EU in the light of the Treaty of Lisbon, already has general powers of the kind envisioned in Article 68 TFEU. Here is the wording of Article 15(1) TEU on the tasks of the European Council:
Article 15(1) TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
***
But a special provision in the context of justice and home affairs and the more precise wording add emphasis to the role of the European Council, as indicated by the Finnish ratification bill (HE 23/2008 vp; page 82).
On the other hand, the change is hardly dramatic. The Irish EU Reform Treaty White Paper states that the provision is in line with current practice (page 67, point 6), and the Swedish consultation paper (Lissabonfördraget, Ds 2007:48; page 299) adds some detail:
”Artikeln kan sägas fördragsfästa en ordning som under senare år har etablerats genom de handlingsprogram för samarbetsområdet som antogs vid Europeiska rådets möten i Tammerfors och Haag (det s.k. Haagprogrammet).”
In other words, the government of Sweden speaks of the Tampere and Hague programmes as examples of the practice to be codified.
The UK House of Commons Library Research Paper 07/86 (page 33) is content to mention the task given to the European Council, without offering a value judgment. I failed to find any mention in the voluminous report by the UK House of Lords European Union Committee ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I).
Surely, we can conclude that the new provision is no bone of contention between the governments of the member states.
A more critical view would have to come from “outside the box”, regarding the role of the European Council in the scheme of things.
Ralf Grahn
EU Treaty sources:
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
We look at the second new Lisbon Treaty provision on justice and home affairs (JHA).
***
Article 68 of the Treaty on the Functioning of the European Union (TFEU) is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 96), 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 68 TFEU
The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.
***
The intergovernmental conference was content to present the wording of the new Article 61a, which became Article 68 TFEU after renumbering (OJ 17.12.2007 C 306/57).
***
There is no directly corresponding Article in the present treaties.
***
In Article III-159 of the draft Treaty establishing a Constitution for Europe, the European Convention proposed exactly the wording now adopted by the Lisbon Treaty (OJ 18.7.2003 C 169/57).
***
Article III-258 of the Treaty establishing a Constitution for Europe passed on the proposal, unchanged (OJ 16.12.2004 C 310/113).
***
In other words, we have an unbroken line from the European Convention to the TFEU, with only a number of years wasted in between.
***
The European Council, arguably the most important institution of the EU in the light of the Treaty of Lisbon, already has general powers of the kind envisioned in Article 68 TFEU. Here is the wording of Article 15(1) TEU on the tasks of the European Council:
Article 15(1) TEU
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
***
But a special provision in the context of justice and home affairs and the more precise wording add emphasis to the role of the European Council, as indicated by the Finnish ratification bill (HE 23/2008 vp; page 82).
On the other hand, the change is hardly dramatic. The Irish EU Reform Treaty White Paper states that the provision is in line with current practice (page 67, point 6), and the Swedish consultation paper (Lissabonfördraget, Ds 2007:48; page 299) adds some detail:
”Artikeln kan sägas fördragsfästa en ordning som under senare år har etablerats genom de handlingsprogram för samarbetsområdet som antogs vid Europeiska rådets möten i Tammerfors och Haag (det s.k. Haagprogrammet).”
In other words, the government of Sweden speaks of the Tampere and Hague programmes as examples of the practice to be codified.
The UK House of Commons Library Research Paper 07/86 (page 33) is content to mention the task given to the European Council, without offering a value judgment. I failed to find any mention in the voluminous report by the UK House of Lords European Union Committee ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I).
Surely, we can conclude that the new provision is no bone of contention between the governments of the member states.
A more critical view would have to come from “outside the box”, regarding the role of the European Council in the scheme of things.
Ralf Grahn
EU Treaty sources:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
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