We add a few complementary references to Commission documents concerning the standing of crime victims and compensation to victims of crime, which we wrote about in an earlier blog post: EU: Victims of crime & compensation (8 April 2009).
***
Standing of crime victims
Press release
Commission adopts report on implementation of framework decision on the standing of victims in criminal proceedings (21 April 2009; IP/09/549)
The Commission has adopted the report on the implementation of Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings. This report was drawn up in accordance with Article 18 of the Framework Decision.
Report
The documents – COM or SEC – can be found through the Eur-Lex web portal’s pages on preparatory acts.
Brussels, 20.4.2009
COM(2009) 166 final
REPORT FROM THE COMMISSION
pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA)
[SEC(2009) 476]
Staff working document
Brussels, 20.4.2009
SEC(2009) 476
COMMISSION STAFF WORKING DOCUMENT Accompanying document to the COMMISSION'S REPORT based on article 18 of the Council Framework Decision of 15 March 2001 on standing of victims in criminal proceedings [COM(2009)166 final]
***
Compensation for crime victims
European Union makes it easier for crime victims to obtain compensation (21 April 2009¸IP//09/548)
The Commission has adopted the Report on the application of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, which aims to make it easier for victims to obtain compensation in cross-border situations. The report was produced in accordance with Article 19 of the Directive.
Summary on crime victims
Report on the implementation of the Directive on compensation to crime victims (21 April 2009; MEMO/09/159)
Directive 2004/80/EC
Summary for the attention of Vice-President J. Barrot
Report
Brussels, 20.4.2009
COM(2009) 170 final
REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Council Directive 2004/80/EC relating to compensation to crime victims
[SEC(2009) 495]
Staff working document
Brussels, 20.4.2009
SEC (2009) 495
COMMISSION STAFF WORKING DOCUMENT
accompanying document
TO THE REPORT FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Council Directive 2004/80/EC relating to compensation to crime victims
[COM (2009) 170 final]
Ralf Grahn
Showing posts with label criminal law. Show all posts
Showing posts with label criminal law. Show all posts
Wednesday, 29 April 2009
Wednesday, 7 May 2008
EU TFEU: Cross-border crime
The EU Treaty of Lisbon clarifies the powers to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension. Qualified majority voting in the Council and co-legislation by the European Parliament make for more effective, democratic and transparent law-making.
There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.
Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.
***
Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 83
(ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-172 Draft Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.
***
The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):
Article III-271 Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it shall be suspended. After discussion, the European
Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396 where it is applicable, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.
The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.
The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.
The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).
Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.
***
The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.
The Foreign and Commonwealth Office (FCO) presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:
“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):
“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”
“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”
“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
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, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.
Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.
***
Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 83
(ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-172 Draft Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.
***
The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):
Article III-271 Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it shall be suspended. After discussion, the European
Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396 where it is applicable, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.
The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.
The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.
The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).
Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.
***
The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.
The Foreign and Commonwealth Office (FCO) presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:
“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):
“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”
“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”
“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
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, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Wednesday, 19 March 2008
EU TFEU: Customs cooperation
EU customs cooperation plays a key role in the fight against fraud and organised crime. We look at the current provision on customs cooperation and what the Lisbon Treaty brings to these activities within the European Union.
***
The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):
45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.
***
The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:
TITLE X
CUSTOMS COOPERATION
Article 135 TEC
Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.
***
The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)
Article 27a TFEU (ToL), after renumbering Article 33 TFEU
Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 2
Customs cooperation
Article III-41 Draft Constitution
Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).
***
The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.
Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.
Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.
Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.
These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)
***
The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:
http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm
There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).
The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:
http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm
The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:
“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.
In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”
In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).
The Customs 2013 Programme consists of the following activities, according to Article 1(2):
(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.
Ralf Grahn
***
The Treaty of Lisbon (ToL) moves the provision on Customs cooperation of the Treaty establishing the European Community (TEC) into the vicinity of the provisions of Chapter 1 The customs union in the Treaty on the Functioning of the European Union (TFEU)(OJ 17.12.2007 C 306/52):
45) A Chapter Ia entitled ‘CUSTOMS COOPERATION’ shall be inserted after Article 27, and an Article 27a shall be inserted with the wording of Article 135, the last sentence of that Article being deleted.
***
The current Article 135 TEC is found in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/106:
TITLE X
CUSTOMS COOPERATION
Article 135 TEC
Within the scope of application of this Treaty, the Council, acting in accordance with the procedure referred to in Article 251, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission. These measures shall not concern the application of national criminal law or the national administration of justice.
***
The Lisbon Treaty is like Ikea furniture: It is handy to store and to transport, but some effort is needed before it serves its purpose. We are now ready to start the construction phase. We follow the express instructions, apply the horizontal amendments as needed, in this case 2(b) and 2(c), and take note of the renumbering to take place. The end result should show what was willed by the intergovernmental conference (IGC 2007):
Part Three Policies and internal actions of the Union
Title I The internal market
Chapter 1a Customs cooperation TFEU (ToL) (to be renumbered Chapter 2 TFEU)
Article 27a TFEU (ToL), after renumbering Article 33 TFEU
Within the scope of application of the Treaties, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall take measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
We then look at the intermediate stages of the treaty reform process. First, the European Convention proposed the following Article III-41 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/34):
Subsection 2
Customs cooperation
Article III-41 Draft Constitution
Within the scope of application of the Constitution, European laws or framework laws shall establish measures in order to strengthen customs cooperation between Member States and between the latter and the Commission.
***
The IGC was content to replace ‘the latter’ by ‘them’ in the Treaty establishing a Constitution for Europe, where the corresponding provision was Article III-152, under Section 3 Free movement of goods, Subsection 2 Customs cooperation (OJ 16.12.2004 C 310/65).
***
The legislative procedure has undergone some name changes along the way. The present co-decision procedure (officially ‘the procedure referred to in Article 251’), became ‘European laws or framework laws’ in the draft Constitution and the Constitution, but after the constitutional concept was jettisoned the IGC hauled in ‘the ordinary legislative procedure’ of the Lisbon Treaty. Substantially there is no difference.
Materially the draft Constitution entailed one amendment of note. Deleting the sentence ‘These measures shall not concern the application of national criminal law or the national administration of justice’ removes a restriction of the scope of allowed legislation.
Enabling measures concerning national criminal law and administration of criminal justice has the potential to counter for instance product and trademark piracy, drugs and arms trafficking, trafficking in human beings and other cross-border crime more effectively than at present, as well as enforce the financial interests of the EU.
Detailed provisions are found in Title IV (ToL, renumbered V TFEU) Area of freedom, security and justice, especially Chapter 4 Judicial cooperation in criminal matters.
These extended powers should be welcomed by legally operating businesses and EU citizens in general. They are less welcome for shady third country operators and criminal organisations and, perhaps, for member states that possibly will the ends, but not the means of joint crime prevention and enforcement. (Denmark, Ireland and the United Kingdom have secured opt-outs from the area of freedom, security and justice.)
***
The Commission’s pages on Justice and Home Affairs, Freedom, Security and Justice, Customs cooperation, offer a starting point for further reading ‘Customs authorities at the heart of the fight against cross-border crime in the EU’:
http://ec.europa.eu/justice_home/fsj/customs/fsj_customs_intro_en.htm
There are further web pages on the Information system, the Investigation database and on Mutual assistance, but these undated entries seem to be in need of an update (or the willingness of member states to ratify conventions).
The European Parliament offers and introduction to Customs cooperation with more exact references and links (last update 16 December 2005, so still leaves a gap of more than two years) at:
http://www.europarl.europa.eu/comparl/libe/elsj/zoom_in/21_en.htm
The General Report on the Activities of the European Union 2007 (page 167) adds the following titbits to our knowledge about customs cooperation:
“In 2007 work continued within the various institutions on laying down the modernised Community Customs Code (5) and establishing e-customs, which aims to replace all customs procedures with interconnected national computerised procedures.
In the field of international relations, on 11 April the Commission proposed the conclusion of an agreement on customs cooperation and mutual administrative assistance in customs matters between the European Community and the government of Japan.”
In addition to ‘hard law’ measures ‘soft law’ means to improve customs cooperation should be remembered. Yesterday’s article EU TFEU: Customs union aims’ mentioned Decision No 624/2007/EC of the European Parliament and of the Council of 23 May 2007 establishing an action programme for customs in the Community (Customs 2013) (OJ 14.6.2007 L 154/25), which presents how the strategic goals of the European Community are pursued at the operational level of customs administrations through an action programme from the beginning of 2008 until the end of 2013 (in line with the current multiannual financial framework).
The Customs 2013 Programme consists of the following activities, according to Article 1(2):
(a) communication and information-exchange systems;
(b) benchmarking;
(c) seminars and workshops;
(d) project groups and steering groups;
(e) working visits;
(f) training activities;
(g) monitoring actions;
(h) any other activities required for the realisation of the objectives of the programme.
Ralf Grahn
Subscribe to:
Posts (Atom)
Subscribe To Grahnlaw
Posts
All Comments
