Monday 12 May 2008

EU TFEU: Europol II

Blogosphere epidemics, such as fantasies about the European Union re-introducing the death penalty, or invasions of liberty-squashing armies of Europol or gendarmerie forces, are hard to stem or cure, since their authors seem absolutely oblivious of or resistant to facts.

After the personal musings in the first part, let cooler minds don the armour of a known personage from La Mancha, in the hope that some citizens are willing to listen to reason. We can deal with only one question at a time, so let us return to the theme of the first post:

What does the EU Treaty of Lisbon say about Europol, the European Police Office?

Then, there is another interesting question. Is it fair or wise if the governments of the member states try to rush through new legislation on Europol and Eurojust in order to evade transparency, co-decision and public debate about to be introduced when the Lisbon Treaty, already signed, enters into force?


United Kingdom

We turn to additional comments and further reading on Europol. First, short comments from Great Britain, and then UK sources where these questions are dealt with extensively.

In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers commented on what was to become Article 69g TFEU (ToL), Article 88 TFEU (page 21):

“The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”

The JHA analysis and other useful Statewatch analyses are available through:


The Foreign and Commonwealth Office (FCO) in its convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), presented the following summary of the results with regard to Article 88 TFEU, Article 69g TFEU (ToL) in the original Lisbon Treaty:

“Draws on Article 30(2) TEU. New provision on Europol’s mission. Co-decision for regulations on Europol’s structure, operation, field of action and tasks. Any operational action by Europol requires agreement of Member State concerned, and coercive measures are reserved to national authorities.”

The FCO comparative table is available at:


The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, and it presents earlier British views about placing Europol on a new legal footing (before the Lisbon Reform Treaty), extending its mandate and the lack of parliamentary scrutiny. The Research Paper refers to additional sources.

The Library Research Paper 07/86 is available at:

My comment: The Lisbon Treaty would remedy (legal footing) or at least promise to diminish (parliamentary scrutiny) most of the shortcomings mentioned in the Research Paper. At this point, I would not be ready to pronounce on how much Europol would need to improve on its promising beginnings (and the tepid cooperation it reportedly gets from some member states’ governments) and if there is a real need to extend the mandate of Europol in coming secondary legislation.


The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139).

The heading ‘Europol’ is found on page 155 and the discussion continues on page 156. The Committee present a short background to the current Europol Convention, and describes the efforts of member states’ governments to rush through a Council Decision to define the powers of Europol. The Committee concludes (page 156):

“6.226. The reason for urgently continuing the current negotiations on the proposed Decision is, we assume, to prevent the European Parliament having powers of co-decision in relation to the constitution and functions of Europol as an agency. We regard it as unfortunate that the Member States should be attempting to override the effect of a provision of a Treaty they have just signed.”

The report is accessible at:

My comment: Although the differences in the wording of the Europol mandate looked fairly small at a first glance, the modalities of parliamentary scrutiny would merit a closer look before a decision is taken. If a (relative) European consensus has existed, since the days of the European Convention, to move to co-decision and to improve parliamentary scrutiny, the governments could rather use their discretion to apply these principles early on than to go against the grain of and to forestall the reforms they have themselves signed up to.



The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Europol’ (page 328 to 329) offers a fairly detailed description of the proposed Lisbon Treaty Article, but I failed to find any mention of an intent by the member states’ governments to intervene between the current Europol Convention and the future Regulation(s) based on co-decision and the promise of the Treaty of Lisbon.

The consultation paper ’Lissabonfördraget’ is available at:



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), offers a detailed description of Article 69g TFEU (ToL), renumbered Article 88 TFEU (pages 204–205).

The Finnish ratification bill includes the remark that the Council, on the basis of the current treaty, is preparing to change the legal basis of Europol into a Decision instead of the present Convention, in the same manner as concerning Eurojust. The intent of the Council is to agree on the matter before the end of June 2008 (page 204).

The Finnish ratification bill is available at:

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), presents the same detailed explanations on pages 207.

Since a few more readers may understand Swedish than Finnish, I render the remark I described above on the Europol and Eurojust Decisions being finalised in the form of an exact quote (page 207):

“Rådet bereder med stöd av gällande unionsfördrag en ändring av rättsgrunden för Europol från konvention till rådets beslut, på samma sätt som i fråga om Eurojust. Målet är att rådet ska godkänna detta beslut före utgången av juni 2008.”

The ratification bill in Swedish can be accessed at:

My comment: While I am open to the need to enhance European level action to combat serious transnational crime, the Council should take heed of the principles of propriety, transparency, full debate and enhanced parliamentary scrutiny, in accordance with the Lisbon Treaty already ahead of its entry into force.

Here the European Parliament and the national parliaments (COSAC) have an opportunity to test their contribution to the good functioning of the European Union.

Ralf Grahn

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