The European Police Office (Europol) has been given a legal framework easier to adapt to changing needs. Joint investigation teams won’t be immune from prosecution. Europol has a new Director.
***
Europol Decision
The laborious procedures to amend and to ratify the Europol Convention have now been replaced by a Council Decision:
Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol), published in the Official Journal of the European Union (OJEU) 15.5.2009 L 121/37.
***
Joint investigation teams
In the same OJEU issue, the immunity from legal proceedings is not extended to Europol staff placed at the disposal of a joint investigation team in respect of official acts required to be undertaken in fulfilment of the tasks set out in Article 6 of Council Decision 2009/371/JHA of 6 April 2009 establishing the European Police Office (Europol).
This is the content of:
Council Regulation (EC) No 371/2009 of 27 November 2008 amending Regulation (Euratom, ECSC, EEC) No 549/69 determining the categories of officials and other servants of the European Communities to whom the provisions of Article 12, the second paragraph of Article 13 and Article 14 of the Protocol on the Privileges and Immunities of the Communities apply.
***
New Director of Europol
Mr Robert Wainwright has been appointed as Director of Europol from 16 April 2009 to 15 April 2013.
The official confirmation is by the Council Act of 6 April 2009 appointing the Director of Europol, published OJEU 15.5.2009 C 111/4.
Ralf Grahn
Showing posts with label police cooperation. Show all posts
Showing posts with label police cooperation. Show all posts
Friday, 15 May 2009
Tuesday, 13 May 2008
EU TFEU: Police operations in the territory of another member state
Although the European Union has created the conditions for the free movement of crime, the EU area of freedom, security and justice remains a patchwork. Common rules on judicial and police authorities operating in the territory of another member state remain outside the ordinary legislative procedure, subject to unanimity in the Council. Even if there were common rules, the concrete operations would take place in liaison and in agreement with the turf state.
Here the EU Treaty of Lisbon does nothing to upset the sensibilities of member states or organised crime.
***
Article 89 of the Treaty on the Functioning of the European Union (TFEU) lays out the special legislative procedure for operating in the territory of another member state. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 89 TFEU
(ex Article 32 TEU)
The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The treaty then presented the text of Article 69h TFEU (ToL) as above, but in the consolidated version the Article and the provisions referred to were renumbered according to the TFEU table of equivalences (page 210). Article 69h TFEU (ToL) became Article 89 TFEU.
***
The current Article 32 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/26):
Article 32 TEU
The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure, but not all the intergovernmental practices. Under Section 5 ‘Police cooperation’, Article III-178 of the draft Treaty establishing a Constitution for Europe continued in the footsteps of Article 32 TEU (OJ 18.7.2003 C 169/61):
Article III-178 Draft Constitution
A European law or framework law of the Council of Ministers shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles III-171 and III-176 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The corresponding provision is Article III-277 of the Treaty establishing a Constitution for Europe. The ‘Council of Ministers’ became the ‘Council’ in the Constitutional Treaty, and the Articles referred to were numbered differently, but the rest of the wording was identical to the draft (OJ 16.12.2004 C 310/122).
***
The Treaty of Lisbon uses different terms for legislative instruments, but the essence of Article 89 TFEU remains exactly the same as in the Constitution and thus the draft Constitution before that.
Materially, the new provision takes over the contents of the current Article 32 TEU.
***
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 may be dealt with more 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 69h TFEU (ToL), Article 89 TFEU (page 21):
“This is identical to the current Article 32 TEU.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
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 89 TFEU, Article 69h TFEU (ToL) in the original Lisbon Treaty:
“In substance the same as Article 32 TEU.”
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) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’.
Papers like this tend to concentrate on changes, so the coming Article 89 TFEU is dealt with summarily (page 52):
“Article 69H (Constitution Article III-277), on operations on the territory of another Member State, largely reproduces the wording of the present Article 32 TEU, which is subject to unanimity and consultation with the EP.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but I failed to find any mention of Article 89 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
Even the systematic Nordic governments find fairly little to say about a provision, which remains within the ambit of intergovernmental legislation, essentially unchanged.
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, has a headline ‘Agerande på en annan medlemsstats territorium’ (page 330). The text describes rule-making based on unanimity concerning operations by the authorities engaged in judicial cooperation in criminal matters and police cooperation in the territory of another member state.
The paper refers to the rules on ‘hot pursuit’ in the Schengen acquis, and to the special provision concerning Europol.
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), describes Article 69h TFEU (ToL), renumbered Article 89 TFEU (page 205).
The Finnish ratification 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), presents the same explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
A few additional comments on operations in the territory of another member state.
Article 89 TFEU applies to the competent authorities of the member states referred to in Articles 82 and 87.
Article 82 TFEU concerns judicial cooperation in criminal matters, and in 82(1)(d) the expression ‘judicial or equivalent authorities’ is used.
Article 87 TFEU regards police cooperation, including police, customs and other specialised law enforcement services.
With or without common rules (conditions and limitations), operations in the territory would anyhow be subject to some minimum consent by that state (in liaison and in agreement with the authorities of that state).
We may find some consolation in the relevant document of the European Convention (CONV 614/03, Annex, page 33):
“Council unanimity and consultation of the European Parliament are provided for. Of course, neither this article, no[r] the other articles under this Title, aim to prevent those Member States which so desire from concluding bilateral agreements providing for closer cooperation between their respective authorities.”
Ralf Grahn
Here the EU Treaty of Lisbon does nothing to upset the sensibilities of member states or organised crime.
***
Article 89 of the Treaty on the Functioning of the European Union (TFEU) lays out the special legislative procedure for operating in the territory of another member state. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 89 TFEU
(ex Article 32 TEU)
The Council, acting in accordance with a special legislative procedure, shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles 82 and 87 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council shall act unanimously after consulting the European Parliament.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The treaty then presented the text of Article 69h TFEU (ToL) as above, but in the consolidated version the Article and the provisions referred to were renumbered according to the TFEU table of equivalences (page 210). Article 69h TFEU (ToL) became Article 89 TFEU.
***
The current Article 32 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/26):
Article 32 TEU
The Council shall lay down the conditions and limitations under which the competent authorities referred to in Articles 30 and 31 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure, but not all the intergovernmental practices. Under Section 5 ‘Police cooperation’, Article III-178 of the draft Treaty establishing a Constitution for Europe continued in the footsteps of Article 32 TEU (OJ 18.7.2003 C 169/61):
Article III-178 Draft Constitution
A European law or framework law of the Council of Ministers shall lay down the conditions and limitations under which the competent authorities of the Member States referred to in Articles III-171 and III-176 may operate in the territory of another Member State in liaison and in agreement with the authorities of that State. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The corresponding provision is Article III-277 of the Treaty establishing a Constitution for Europe. The ‘Council of Ministers’ became the ‘Council’ in the Constitutional Treaty, and the Articles referred to were numbered differently, but the rest of the wording was identical to the draft (OJ 16.12.2004 C 310/122).
***
The Treaty of Lisbon uses different terms for legislative instruments, but the essence of Article 89 TFEU remains exactly the same as in the Constitution and thus the draft Constitution before that.
Materially, the new provision takes over the contents of the current Article 32 TEU.
***
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 may be dealt with more 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 69h TFEU (ToL), Article 89 TFEU (page 21):
“This is identical to the current Article 32 TEU.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
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 89 TFEU, Article 69h TFEU (ToL) in the original Lisbon Treaty:
“In substance the same as Article 32 TEU.”
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) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’.
Papers like this tend to concentrate on changes, so the coming Article 89 TFEU is dealt with summarily (page 52):
“Article 69H (Constitution Article III-277), on operations on the territory of another Member State, largely reproduces the wording of the present Article 32 TEU, which is subject to unanimity and consultation with the EP.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length in Chapter 6 (from page 139), but I failed to find any mention of Article 89 TFEU.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
Even the systematic Nordic governments find fairly little to say about a provision, which remains within the ambit of intergovernmental legislation, essentially unchanged.
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, has a headline ‘Agerande på en annan medlemsstats territorium’ (page 330). The text describes rule-making based on unanimity concerning operations by the authorities engaged in judicial cooperation in criminal matters and police cooperation in the territory of another member state.
The paper refers to the rules on ‘hot pursuit’ in the Schengen acquis, and to the special provision concerning Europol.
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), describes Article 69h TFEU (ToL), renumbered Article 89 TFEU (page 205).
The Finnish ratification 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), presents the same explanation on page 208.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
A few additional comments on operations in the territory of another member state.
Article 89 TFEU applies to the competent authorities of the member states referred to in Articles 82 and 87.
Article 82 TFEU concerns judicial cooperation in criminal matters, and in 82(1)(d) the expression ‘judicial or equivalent authorities’ is used.
Article 87 TFEU regards police cooperation, including police, customs and other specialised law enforcement services.
With or without common rules (conditions and limitations), operations in the territory would anyhow be subject to some minimum consent by that state (in liaison and in agreement with the authorities of that state).
We may find some consolation in the relevant document of the European Convention (CONV 614/03, Annex, page 33):
“Council unanimity and consultation of the European Parliament are provided for. Of course, neither this article, no[r] the other articles under this Title, aim to prevent those Member States which so desire from concluding bilateral agreements providing for closer cooperation between their respective authorities.”
Ralf Grahn
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:
http://www.statewatch.org/euconstitution.htm
***
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:
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) 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:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
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:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
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.
***
Sweden
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:
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), 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:
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), 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:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
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
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:
http://www.statewatch.org/euconstitution.htm
***
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:
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) 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:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
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:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
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.
***
Sweden
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:
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), 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:
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), 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:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
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
EU TFEU: Europol I
The EU Treaty of Lisbon incorporates the foundations of Europol – the European Police Office – into the Treaty on the Functioning of the European Union (TFEU).
The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.
But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?
***
Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 88 TFEU
(ex Article 30 TEU)
1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;
(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.
3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).
In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.
***
The IGC 2004 adopted the text of the European Convention without change.
The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).
***
The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.
The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.
***
Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.
Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.
For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?
The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.
In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?
The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
Force is the sole responsibility of the member states. How can you square this with invading armies?
***
Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?
We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.
We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.
We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.
If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?
And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?
Ralf Grahn
The ordinary legislative procedure, with qualified majority voting in the Council and co-decision by the European Parliament, will apply instead of the current intergovernmental convention-based cooperation. Scrutiny by the European Parliament and national parliaments is enhanced.
But, is Europol an armed villain ready to pounce on our cherished liberties, or is it potentially hampered by the limitations imposed by the member states?
***
Article 88 of the Treaty on the Functioning of the European Union (TFEU) lays out Europol’s mission to support and strengthen action by the EU member states’ police authorities. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/84. The location of the provision is added from the TFEU table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 88 TFEU
(ex Article 30 TEU)
1. Europol's mission shall be to support and strengthen action by the Member States' police authorities and other law enforcement services and their mutual cooperation in preventing and combating serious crime affecting two or more Member States, terrorism and forms of crime which affect a common interest covered by a Union policy.
2. The European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Europol's structure, operation, field of action and tasks. These tasks may include:
(a) the collection, storage, processing, analysis and exchange of information, in particular that forwarded by the authorities of the Member States or third countries or bodies;
(b) the coordination, organisation and implementation of investigative and operational action carried out jointly with the Member States' competent authorities or in the context of joint investigative teams, where appropriate in liaison with Eurojust.
These regulations shall also lay down the procedures for scrutiny of Europol's activities by the European Parliament, together with national Parliaments.
3. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned. The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and 69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
The IGC 2007 then laid out the text of Article 69g TFEU (ToL) as above. After renumbering this provision became Article 88 TFEU in the consolidated version. Cf. ToL table of equivalences, OJ 17.12.2007 C 306/210.
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision, to be replaced, is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, Article III-177 of the draft Treaty establishing a Constitution for Europe was meant to replace the provisions on Europol (OJ 18.7.2003 C 169/61).
In substance, Article III-177 laid the foundations for the later stages of the treaty reform process. The only differences between the draft Constitution and the Lisbon Treaty TFEU are either ones of general terminology or stylistic, so I leave it to the interested reader to look up the draft text if needed.
***
The IGC 2004 adopted the text of the European Convention without change.
The corresponding provision is Article III-276 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/122).
***
The provision on Europol was, in essence, written by the European Convention, with the ordinary legislative procedure, including the application of qualified majority voting (QMV) in the Council and co-decision by the European Parliament. The European Convention also held out the promise of scrutiny by the European Parliament and national parliaments.
The result was adopted by, first the IGC 2004 and then the IGC 2007, with minimal modifications.
***
Almost every provision on EU powers, including the one on Europol, has led to spates of ‘creative’ writing in the blogosphere, where counterfactual allegations have been brandished as gospel truth, on the sole authority of previous ill-informed (or worse) writers. I have seldom or never seen writers of this kind of wild allegations retract their phantasms even if confronted with undeniable facts.
Therefore, it falls to citizens to try to find and to evaluate more objective (but often sadly dull) information about realities.
For instance, with a cool head, read the third paragraph of Article 88 TFEU. Is it likely that we are going to be ‘invaded’ by armed teams of foreign police aiming to crush our liberties?
The member states have, in my view, severely limited the action of Europol. Any operational action by Europol must be carried out in liaison and in agreement with the authorities of the Member State or States whose territory is concerned.
In liaison and agreement with the national authorities. Do ‘invading’ hordes ask for permission?
The application of coercive measures shall be the exclusive responsibility of the competent national authorities.
Force is the sole responsibility of the member states. How can you square this with invading armies?
***
Would it be amiss for a European citizen to ask if the restrictions are not a high price to pay for member states’ sensitivities?
We could start with the assumption that most citizens of good regard an effective combat against serious crime as important for their own and their society’s security and prosperity.
We know that the free movement for all within the EU regrettably makes it easier for serious crime to spread across borders.
We also know that corruption and organised crime are deeply entrenched in some member states, including old ones, and in some prospective members.
If these assumptions are correct, can we be sure that a Europol cast in a supportive role and dependent on the good will of the member states’ authorities is going to be able to perform effectively, without being frustrated in its efforts by corrupt forces?
And, if crime and mystery is the field where the important questions for European citizens are to be decided, would it not be better to look towards Eliot Ness and “The Untouchables” than at fantasies about invading aliens?
Ralf Grahn
Sunday, 11 May 2008
EU TFEU: Police cooperation
In an era of cross-border crime, effective police cooperation is needed between the member states of the European Union. The Treaty of Lisbon applies qualified majority voting in the Council and the ordinary legislative procedure (co-decision) some measures contributing to the fight against crime.
Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.
***
Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 87 TFEU
(ex Article 30 TEU)
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council 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 for adoption.
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 measures 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.
The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).
Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Section 5
Police cooperation
Article III-176 Draft Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 adopted the text of the European Convention without substantial change.
This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):
Section 5
Police cooperation
Article III-275 Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”
***
The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.
According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.
If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.
***
United Kingdom
We turn to additional comments and further reading on EU police cooperation. 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 69f TFEU (ToL), Article 87 TFEU (page 20):
“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”
“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another 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), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”
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) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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).
‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border 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) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).
The Finnish ratification 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), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Legislation for operational cooperation still demands unanimity in the Council, but a group of member states can more easily initiate enhanced cooperation within EU structures and procedures, although Schengen building measures are excluded.
***
Article 87 of the Treaty on the Functioning of the European Union (TFEU) starts a new Chapter 5 on police cooperation. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, now published in the Official Journal of the European Union, OJ 9.5.2008 C 115/83–84,. The location of the provision is added from the table of equivalences (page 368–371):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 5 ‘Police cooperation’
Article 87 TFEU
(ex Article 30 TEU)
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. The Council, acting in accordance with a special legislative procedure, may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
In case of the absence of unanimity in the Council, a group of at least nine Member States may request that the draft measures be referred to the European Council. In that case, the procedure in the Council 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 for adoption.
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 measures 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.
The specific procedure provided for in the second and third subparagraphs shall not apply to acts which constitute a development of the Schengen acquis.
***
In Article 2, point 68, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/66):
POLICE COOPERATION
68) The following Chapter 5 and Articles 69 F, 69 G and 69 H shall be inserted. Articles 69 F and
69 G shall replace the current Article 30 of the Treaty on European Union, and Article 69 H
shall replace Article 32 thereof, as set out above in point 51 of Article 1 of this Treaty: …
Then followed the text (as above, bar the numbering of Articles referred to) of Article 69f TFEU (ToL), which was to become Article 87 TFEU in the consolidated version (pages 66–67).
***
The current Article 30 of the Treaty on European Union (TEU) belongs to the intergovernmental third pillar, in Title VI ‘Provisions on police and judicial cooperation in criminal matters’. The provision is found in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/24–25):
Article 30 TEU
1. Common action in the field of police cooperation shall include:
(a) operational cooperation between the competent authorities, including the police, customs and other specialised law enforcement services of the Member States in relation to the prevention, detection and investigation of criminal offences;
(b) the collection, storage, processing, analysis and exchange of relevant information, including information held by law enforcement services on reports on suspicious financial transactions, in particular through Europol, subject to appropriate provisions on the protection of personal data;
(c) cooperation and joint initiatives in training, the exchange of liaison officers, secondments, the use of equipment, and forensic research;
(d) the common evaluation of particular investigative techniques in relation to the detection of serious forms of organised crime.
2. The Council shall promote cooperation through Europol and shall in particular, within a period of five years after the date of entry into force of the Treaty of Amsterdam:
(a) enable Europol to facilitate and support the preparation, and to encourage the coordination and carrying out, of specific investigative actions by the competent authorities of the Member States, including operational actions of joint teams comprising representatives of Europol in a support capacity;
(b) adopt measures allowing Europol to ask the competent authorities of the Member States to conduct and coordinate their investigations in specific cases and to develop specific expertise which may be put at the disposal of Member States to assist them in investigating cases of organised crime;
(c) promote liaison arrangements between prosecuting/investigating officials specialising in the fight against organised crime in close cooperation with Europol;
(d) establish a research, documentation and statistical network on cross-border crime.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed a unified treaty, which would have abolished the pillar structure. Under Section 5 ‘Police cooperation’, measures on some aspects of police cooperation would have been taken according to the ordinary legislative procedure, meaning qualified majority voting (QMV) in the Council and co-decision by the European Parliament (pargraph 2). The measures for operational cooperation would have remained subject to unanimity in the Council and the European Parliament would only have been consulted (pargraph 3).
Here is Article III-176 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/61):
Section 5
Police cooperation
Article III-176 Draft Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. To this end, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime-detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council of Ministers may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 adopted the text of the European Convention without substantial change.
This is the text of Article III-275 of the Treaty establishing a Constitution for Europe, almost identical to the draft (OJ 16.12.2004 C 310/121–122):
Section 5
Police cooperation
Article III-275 Constitution
1. The Union shall establish police cooperation involving all the Member States' competent authorities, including police, customs and other specialised law enforcement services in relation to the prevention, detection and investigation of criminal offences.
2. For the purposes of paragraph 1, European laws or framework laws may establish measures concerning:
(a) the collection, storage, processing, analysis and exchange of relevant information;
(b) support for the training of staff, and cooperation on the exchange of staff, on equipment and on research into crime‑detection;
(c) common investigative techniques in relation to the detection of serious forms of organised crime.
3. A European law or framework law of the Council may establish measures concerning operational cooperation between the authorities referred to in this Article. The Council shall act unanimously after consulting the European Parliament.
***
The provisions on judicial cooperation in criminal matters are generally based on the Constitutional Treaty, with the modifications introduced by the IGC 2007 Mandate (Council document 11218/07, point 19(l), page 8):
“l) In the Chapters on judicial cooperation in criminal matters and on police cooperation, as amended in the 2004 IGC, in the Articles on mutual recognition of judgments, minimum rules on definition of criminal offences and sanctions, the European Public Prosecutor, and police cooperation, a new mechanism will be inserted enabling Member States to go forward with adopting measures in this field while allowing others not to participate (see point 2)(c) and (d) of Annex 2). Moreover, the scope of the Protocol on the position of the United Kingdom and Ireland (1997) will be extended so as to include, in relation to the UK, and on the same terms, the Chapters on judicial cooperation in criminal matters and on police cooperation. It may also address the application of the Protocol in relation to Schengen building measures and amendments to existing measures. This extension will take account of the UK's position under the previously existing Union acquis in these areas. Ireland will determine in due course its position with regard to that extension.”
***
The mechanism enabling member states to go forward while allowing others not to participate was then duly detailed in point 2(d) of Annex 2 (page 16).
With regard to police cooperation, an additional subparagraph was added to the new text of paragraph 3, spelling out that the facilitated enhanced cooperation would not apply to acts which constitute a development of the Schengen acquis.
Given the determining influence of the IGC 2007 Mandate, in this and most other questions the intergovernmental conference was actually concluded before it started, leaving it to the specialist lawyers of the Council and the member states to wrap up the coming Lisbon Treaty technically before the agreed amendments could be signed in Lisbon, where the so called Reform Treaty became officially known as the Treaty of Lisbon.
According to the Treaty of Lisbon, it will be easier for a group of states to establish enhanced cooperation, letting other members bide their time. Enhanced cooperation means that new steps can be taken within the structures of the European Union, although the adopted measures apply to only the participating member states.
If enhanced cooperation is either unavailable or deemed to be too cumbersome, willing and able member states have opted for treaties outside EU structures and procedures, such as the origins of the Schengen, Dublin and Prüm conventions.
***
United Kingdom
We turn to additional comments and further reading on EU police cooperation. 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 69f TFEU (ToL), Article 87 TFEU (page 20):
“Paragraph 2, but not paragraph 3, will be subject to QMV and co-decision, a change from the present unanimity and consultation.”
“The new provisions in the draft Reform Treaty provide for the possibility of a group of Member States applying a ‘flexibility’ procedure in the event of a veto by one or more Member States. This is again distinct from the separate power of the UK, Ireland and Denmark to opt out of proposals at the outset. Note that the new provisions do not apply to paragraph 2.”
The JHA analysis and other useful Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The Foreign and Commonwealth Office (FCO) published another 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), offering the following summary of the results with regard to Article 87 TFEU, Article 69f TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 30(1) TEU. Co-decision for certain measures, but operational cooperation measures require unanimity in the Council and EP consultation.”
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) dedicates pages 48 to 52 to a presentation of ‘Police cooperation’. Most of the text concerns Europol, with fairly brief remarks on Article 69f, including the statement that the UK has the option to opt in to measures under these Articles (page 48).
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
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).
‘Police cooperation’ was briefly dealt with on page 155, without identifying significant change.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Sweden
The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, under the headline ‘Polissamarbete’ (page 325 to 326) remarks on the aim of the European Convention to distinguish between legislative and operational matters. Under ‘Förhandlingsresultatet’ the government underlines the national strategic importance of continued development of European police cooperation, and it mentions trafficking in human beings, the trade in drugs and terrorism as examples of crimes that require well-working cross-border 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) offers the most detailed description of Article 69f TFEU (ToL), renumbered Article 87 TFEU of the sources checked (pages 203–204).
The Finnish ratification 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), presents the same detailed explanations under ’Polissamarbete’ on pages 206 and 2007.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
Ralf Grahn
Wednesday, 30 April 2008
EU TFEU: Police and criminal justice initiatives
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
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, 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
Subscribe to:
Posts (Atom)
Subscribe To Grahnlaw
Posts
All Comments
