The EU Treaty of Lisbon gives the European Union the specific mandate to promote and support action of the member states in the field of crime prevention. The ordinary legislative procedure is going to apply, which means that legislation can become more effective, democratic and transparent than under current forms of intergovernmental cooperation.
***
Article 84 of the Treaty on the Functioning of the European Union (TFEU) allows EU measures to promote and support the action of member states in the field of crime prevention. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 84 TFEU
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
The attentive reader notices that no further explanation was given about Article 69c. The IGC just presented the wording (as above; page 64) of Article 69c TFEU (ToL), which became Article 84 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
There is no directly corresponding provision in the current treaties.
Although there is no specific legal base on measures to prevent crime in the current treaties, we can refer to the objective to provide citizens with a high level of security, to be achieved by ‘preventing and combating crime’ (Article 29 TEU, as well as vaguely worded legal bases in Article 34 TEU). Article 61(e) TEC mentions ‘measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime within the Union in accordance with the Treaty on European Union’.
***
We now take a look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-173 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-173 Draft Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention. Such measures shall not include the approximation of Member States' legislative and regulatory provisions.
***
During the IGC 2004 Article III-271 of the Treaty establishing a Constitution for Europe underwent a few stylistic changes (OJ 16.12.2004 C 310/120):
Article III-272 Constitution
European laws or framework laws may establish measures to promote and support the action of Member States in the field of crime prevention, excluding any harmonisation of the laws and regulations of the Member States.
***
On this basis we conclude that the new provision was proposed by the European Convention, slightly re-worded by the IGC 2004 and finally adapted by the IGC 2007 to the terminology employed in the Treaty of Lisbon.
This preliminary conclusion can be checked simultaneously with the following resources on the contents of the Lisbon Treaty amendments.
***
United Kingdom
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave the following explanation of what was to become Article 69c TFEU (ToL), Article 84 TFEU (page 17):
“There is no express legal base on this issue at present, but measures on crime prevention have been adopted as part of the EU’s criminal law funding programmes. The voting procedure is QMV and co-decision, a change from the present unanimity and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Crime prevention’ (page 42), where it referred to one current treaty provision and explained the difference:
“Although Article 61(e) TEC currently provides that the Council shall adopt measures in the field of police and judicial cooperation in criminal matters aimed at a high level of security by preventing and combating crime, the new Article provides a legal base (not requiring unanimity) limited to incentive and supporting measures for the prevention of crime.”
The Library Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
The Foreign and Commonwealth Office (FCO) presents a convenient short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 84 TFEU, Article 69c TFEU (ToL) in the original Lisbon Treaty:
“New. Introduces a new legal basis for crime prevention measures by co-decision, excluding harmonisation.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 let us turn to the general remarks of the Committee on the question ‘Are the Union’s competences extended by the Lisbon Treaty? (page 27):
“2.32. Defining the extent to which the Union’s competences are extended by the Lisbon Treaty is difficult. The Treaty includes new articles formally specifying new competences, but some of these largely confirm areas of competence in which the Union has already legislated on a different legal basis. Competence is also extended less visibly by amendments to preexisting articles, but again, the significance of such changes is debated.”
The Committee went on to mention the extensions of competence listed by the Minister for Europe, Jim Murphy MP, including ‘Crime prevention: new’, but I failed to find any further discussion about Article 84 TFEU in the report.
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, offers a positive evaluation of crime prevention (pages 317–318):
“För att uppnå målet med frihet, säkerhet och rättvisa är det viktigt med ett effektivt brottsförebyggande arbete. Genom den särskilda artikel som nu förs in i EUF-fördraget (artikel 69c) ges unionen uttrycklig möjlighet att uppmuntra och stödja medlemmarna i detta arbete.”
The consultation paper ’Lissabonfördraget’ is available at:
http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf
***
Finland
The Finnish ratification bill ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp) gives a detailed description of Article 69c TFEU (ToL), renumbered Article 84 TFEU on page 201.
The bill is available at:
http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf
The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), contains the same remarks on pages 203–204.
The ratification bill in Swedish can be accessed at:
http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf
***
All in all, the ‘new’ legal base for EU crime prevention measures brought about by the Treaty of Lisbon is new in its clarity and specificity, but not a real novelty when it comes to the scope for EU action.
The real change is that ‘Community’ procedures apply, to be known as the ordinary legislative procedure: qualified majority voting in the Council and co-decision by the European Parliament.
***
The interested reader can compare the special provision on promoting and supporting action for crime prevention with the general classification of EU competences in the Treaty of Lisbon.
Article 3 TFEU lists the areas of exclusive EU competence.
Article 4 TFEU lists the areas where competence is shared between the EU and the member states, with the area of freedom, security and justice mentioned in Article 4(2)(j).
Article 6 TFEU lists the areas where the EU has competence to carry out actions to support, coordinate or supplement the actions of the member states, but these larger ‘chunks’ do not mention crime prevention, although the special provision in Article 84 TFEU has many similar traits.
***
The reader who wants to explore what the European Union actually does in the field of crime prevention can start with the European Commission’s Justice and home affairs web page ‘Prevention of and Fight against Crime’(latest addition 29 April 2008):
http://ec.europa.eu/justice_home/funding/isec/funding_isec_en.htm
Ralf Grahn
Thursday, 8 May 2008
Wednesday, 7 May 2008
EU TFEU: Cross-border crime
The EU Treaty of Lisbon clarifies the powers to establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension. Qualified majority voting in the Council and co-legislation by the European Parliament make for more effective, democratic and transparent law-making.
There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.
Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.
***
Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 83
(ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-172 Draft Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.
***
The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):
Article III-271 Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it shall be suspended. After discussion, the European
Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396 where it is applicable, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.
The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.
The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.
The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).
Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.
***
The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.
The Foreign and Commonwealth Office (FCO) presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:
“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):
“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”
“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”
“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
There is an emergency brake for laggards, and enhanced cooperation for member states willing to move forward.
Here are the ‘nuts and bolts’ of the drafting history of Article 83 TFEU, and some further reading on the substantive contents of the new provision.
***
Article 83 of the Treaty on the Functioning of the European Union (TFEU) deals with establishing minimum rules concerning criminal offences and sanctions for serious crime with cross-border dimensions. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 105–106), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 83
(ex Article 31 TEU)
1. The European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, directives may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Such directives shall be adopted by the same ordinary or special legislative procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article 76.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed wording (as above, except the referrals later renumbered) of Article 69b TFEU (ToL), which became Article 83 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
One minor difference was noted between the two versions of the second paragraph. In the ToL version there was only one paragraph 2 (OJ 17.12.2007 C 306/64), but in the Council’s consolidated version the second sentence ‘Such directives …’ had become a second subparagraph.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-172 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Article III-172 Draft Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with cross-border dimensions resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council of Ministers may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal legislation proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned.
Without prejudice to Article III-165, such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures referred to in the preceding subparagraph.
***
The IGC 2004 agreed on the wording of the first two paragraphs of Article III-271 of the Treaty establishing a Constitution for Europe with a few stylistic changes, but added a third paragraph with the so called emergency brake and a fourth paragraph authorising enhanced cooperation among at least a third of member states willing and able (OJ 16.12.2004 C 310/119–120):
Article III-271 Constitution
1. European framework laws may establish minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis.
These areas of crime are the following: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime.
On the basis of developments in crime, the Council may adopt a European decision identifying other areas of crime that meet the criteria specified in this paragraph. It shall act unanimously after obtaining the consent of the European Parliament.
2. If the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to harmonisation measures, European framework laws may establish minimum rules with regard to the definition of criminal offences and sanctions in the area concerned. Such framework laws shall be adopted by the same procedure as was followed for the adoption of the harmonisation measures in question, without prejudice to Article III-264.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 1 or 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, where the procedure referred to in Article III-396 is applicable, it shall be suspended. After discussion, the European
Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396 where it is applicable, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
The provision we are studying has changed at every stage of the treaty reform process. The current Article 31 TEU gives only vague indications of where the present intergovernmental cooperation might lead.
The European Convention gave the provision its essential contents, which survived two intergovernmental conferences.
The IGC 2004 inserted the ‘emergency brake’ for each member state worried that fundamental aspects of its criminal justice system might be affected. This was counterbalanced by the guarantee that at least a third of the member states would be able to advance if unanimity could not be found in the European Council.
The IGC 2007 took over the text of the Constitutional Treaty with the general terminological changes used in the Treaty of Lisbon, but the third and fourth paragraph were re-written according to the IGC 2007 Mandate (Council document 11218/07; point 19(l) on page 8 and Annex 2, point 2(c) on page 16).
Since unanimous decision-making easily leads to paralysis or acts based on the lowest common denominator, it is important that recalcitrant members do not stand in the way of progress, if a group of member states are willing and able to forge ahead. The unity of EU legislation is sacrificed (even more than today), but enhanced cooperation allows experiments within the EU structures instead of outside, which has been the case with the Schengen, Dublin and Prüm Conventions.
***
The United Kingdom, with its predilection for minimalism and its opt-outs and emergency brakes, is a fascinating object of study. We look at some British views.
The Foreign and Commonwealth Office (FCO) presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 83 TFEU, Article 69b TFEU (ToL) in the original Lisbon Treaty:
“Draws on Article 31(1)(e) TEU. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to identify additional areas of serious cross-border crime that might be the subject of minimum rules. The adoption of minimum rules is subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) dealt with ‘Approximation of criminal law’ (page 41), where it quoted the European Scrutiny Committee:
“…, harmonisation of criminal law within the European Union should proceed by agreement of all Member States, or it should not proceed at all.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
***
In the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007), Steve Peers gave a thorough explanation of what was to become Article 69b TFEU (ToL), Article 83 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked i.a. (pages 16–17):
“The voting procedures otherwise is QMV and co-decision, a change from the present unanimity and consultation.”
“The competence on these issues is far more precise than the current Article 31(1)(e) TEU …”
“Paragraph 2 would resolve a long-running dispute as to whether, and to what extent, under the current Treaties, the ‘first pillar’ can be used to adopt criminal law measeures …”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
***
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length, with the pages 143 to 149 dedicated to an interesting and enlightening treatment of Article 83 TFEU under ‘Approximation of substantive criminal law’.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Tuesday, 6 May 2008
EU TFEU: Judicial cooperation in criminal matters
Mutual recognition of judgments, approximation (harmonisation) of laws and minimum procedural rules in cross-border criminal cases form the nucleus of EU judicial cooperation in criminal matters according to the Treaty of Lisbon.
***
Article 82 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning of a new Chapter 4 on judicial cooperation in criminal matters. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 104–105), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 82 TFEU
(ex Article 31 TEU)
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed chapter heading and wording (as above, save for the referrals later renumbered) of Article 69a TFEU (ToL), which became Article 82 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-171 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Section 4
Judicial cooperation in criminal matters
Article III-171 Draft Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-172.
European laws or framework laws shall establish measures to:
(a) establish rules and procedures to ensure the recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) encourage the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. In order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules concerning:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
Adoption of such minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure.
***
The IGC 2004 took over, with modifications, the draft text in the first and second paragraph of Article III-270 of the Treaty establishing a Constitution for Europe, but the IGC 2004 added a third and fourth paragraph (OJ 16.12.2004 C 310/118–119):
Section 4
Judicial cooperation in criminal matters
Article III-270 Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-271.
European laws or framework laws shall establish measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross‑border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
The current Article 31 TEU is part of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, which is based on intergovernmental cooperation and constitutes the so called third pillar.
The objective of the European Convention was to form a more unified area of freedom, security and justice, by abolishing the pillar structure and moving the remaining third pillar matters under the same heading with those justice and home affairs questions, where Community or first pillar procedures applied already.
The draft Constitution re-wrote the main provision on judicial cooperation in criminal matters by clearly endorsing the principle of mutual recognition and the practice of approximation (harmonisation) of laws.
When the governments met in the IGC 2004, they accepted the general approach of the European Convention, but added certain limitations. In the second paragraph, minimum rules were to be established only ‘to the extent necessary’ and these rules were to ‘take into account the differences between the legal traditions and systems of the Member States’.
The new third paragraph instituted the so called emergency brake for each member state which considered that a draft framework law (directive) would affect fundamental aspects of its criminal justice system, but on the other hand, if the proposed act came to nothing, a group of member states could establish enhanced cooperation on the basis of the proposed draft law, as stated in paragraph 4.
The Treaty of Lisbon used its own terminology, and it streamlined paragraphs 3 and 4 on the emergency brake and enhanced cooperation, but essentially it adopted the text agreed by the IGC 2004.
***
In addition to opting out, watering down proposals made by the European Convention was described as a victory for the United Kingdom government. The Foreign and Commonwealth Office (FCO) offered the following summary in the ‘White Paper on the Treaty establishing a Constitution for Europe’ (Command Paper 6309, September 2004; page 11):
“The UK’s negotiating success at the IGC
At the European Council on 18 June, amendments to the Convention’s draft EU Constitution were set out in two documents, CIG 81/04 and CIG 85/04.These two documents superseded all other proposals for amendments made by either Presidency during the IGC. In total, these documents cover amendments on 80 different areas in the Treaty.
The UK advocated the amendments in 39 of the 80 areas covered (see chart at Annex 2). Examples range from criminal law, tax and social security to the provisions on animal welfare and the solidarity clause. These amendments were either initiated by the UK, initiated jointly with other Member States, or pushed by other Member States and supported by the UK.
The UK remained neutral on 38 areas where others had pushed for amendments which were of no substantive concern to the UK.
In the remaining three areas, the UK originally opposed the amendments, but we secured changes at the European Council which made them acceptable (e.g. provisions for the Union’s accession to the European Convention on Human Rights).
In short, nearly half the final changes to the Treaty were secured at UK instigation: a measure of the influence the UK had on its final form.”
Against this background followed the description of the negotiations on justice and home affairs from the British government’s point of view (page 31):
“Justice and Home Affairs
67. The Maastricht Treaty (1992) introduced co-operation on Justice and Home Affairs issues as the third pillar in the EU’s pillar structure with its own separate intergovernmental arrangements. The Constitution introduces qualified majority voting as the norm for JHA issues – a welcome consequence of abolishing the pillar structure (as the Government made clear at paragraph 82 of the September 2003 White Paper).
68. This means that no single Member State will be able to block action on issues like cross-border crime, drug trafficking, illegal immigration and terrorism. These are international issues where it is in our interest to work within the EU. But because of the differences in Member States’ legal traditions and systems, the Government, in its September 2003 White Paper, said that QMV would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned (paragraph 83). This commitment has been delivered upon. The Convention’s proposals for blanket QMV in criminal law were replaced by an emergency brake mechanism. This means that a Member State which cannot accept a criminal procedural law proposal can ‘pull the brake’. This stops the discussion in the Council and automatically refers it to the European Council where decisions are made by consensus. If it is still impossible to agree, then the enhanced co-operation provisions can be applied, without all the preliminary procedures needing to be applied. This means that if a third of Member States want to, they can go ahead by themselves. This enhanced flexibility is one of the benefits of the new Treaty.”
The Command Paper 6309 is available at:
http://www.fco.gov.uk/resources/en/pdf/pdf15/fco_beu_euct_whitepaper_sept04
***
About three years later, the UK government reported in the same vein on the IGC 2007 in ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007’ (Command Paper 7174, published 23 July 2007; page 10):
“The Mandate agreed at the June European Council stipulates that, as part of the IGC process, the UK's right not to participate in new measures in the JHA area can be made to apply even where those measures build upon earlier agreements.
The new Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a Member State's legal system. This is the so-called ‘emergency brake’. If all the members of the European Council do not unanimously agree the proposal will fall, or will go ahead only in the Member States that want it – and then only if at least one third choose to go forward in that way. This additional safeguard will be available even where the UK had previously chosen to opt-in to a proposal in these areas.”
The FCO view is available at:
http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf
***
Having looked at some historic positions concerning the “emergency brake”, we move on to a few more British views on matters relating to EU judicial cooperation in criminal matters, now with the Treaty of Lisbon in hand.
The FCO presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 82 TFEU, formerly Article 69a TFEU (ToL):
“Draws on Article 31(1) TEU. Mutual recognition, as well as approximation of laws, is to be the basis for criminal judicial co-operation. Lists the areas in which minimum rules on criminal procedural law may be adopted. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to extend the scope of minimum rules that may be adopted. The adoption of minimum rules on criminal procedure is also subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; pages 38–39) commented on criminal procedures:
“On criminal procedures, Article 69A goes much further than the existing Article 31(1)(c) TEU, which merely includes in the list of common actions “ensuring compatibility in rules applicable in Member States as may be necessary to improve [judicial] cooperation”. --- This is a new and potentially controversial provision. It would permit the EU to establish minimum rules relating specifically to mutual admissibility of evidence, the rights of individuals in criminal procedure, and the rights of victims of crime.”
The Research Paper 07/86, with the discussion of judicial cooperation in criminal matters continuing to page 48, is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Steve Peers commented in the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 69a TFEU (ToL), Article 82 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked (page 15):
“These changes clarify the prospect of applying an ‘emergency brake’ and the possibility of a
group of Member States applying a ‘flexibility’ procedure afterward. This is distinct from the
UK, Irish and Danish power to opt out of proposals at the outset. Note that the ‘emergency
brake’ does not apply to paragraph 1.
The voting procedure otherwise is QMV and co-decision, a change from the present unanimity
and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length, with the pages 139 to 143 dedicated to mutual recognition, harmonisation and criminal procedure. Here are the conclusions of the Committee:
“6.152. The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.”
---
“6.160. The extent of the Union’s existing competence in the area of criminal procedure under the existing Article 31 with its nonexhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims’ rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament’s consent.
6.161. Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters “having a crossborder dimension”. The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
***
Article 82 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning of a new Chapter 4 on judicial cooperation in criminal matters. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 104–105), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 4 ‘Judicial cooperation in criminal matters’
Article 82 TFEU
(ex Article 31 TEU)
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83.
The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.
Within the same timeframe, in case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, they shall notify the European Parliament, the Council and the Commission accordingly. In such a case, the authorisation to proceed with enhanced cooperation referred to in Article 20(2) of the Treaty on European Union and Article 329(1) of this Treaty shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
In Article 2, point 67, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/62):
“67) Article 66 shall be replaced by Article 61 G, as set out in point 64 above, and Articles 67 to 69 shall be repealed. The following Chapter 4 and Articles 69 A to 69 E shall be inserted. Articles 69 A, 69 B and 69 D shall replace the current Article 31 of the Treaty on European Union, as set out above in point 51 of Article 1 of this Treaty: …”
It then went on to present the agreed chapter heading and wording (as above, save for the referrals later renumbered) of Article 69a TFEU (ToL), which became Article 82 TFEU after renumbering in the consolidated version of the treaty. Cf. TFEU table of equivalences, OJ 17.12.2007 C 306/210.
***
Article 31 of the current Treaty on European Union (TEU), to be replaced partly by Article 82 TFEU, is found in TEU Title VI ‘Provisions on police and judicial cooperation in criminal matters’, in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/25):
Article 31 TEU
1. Common action on judicial cooperation in criminal matters shall include:
(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;
(b) facilitating extradition between Member States;
(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;
(d) preventing conflicts of jurisdiction between Member States;
(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.
2. The Council shall encourage cooperation through Eurojust by:
(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;
(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;
(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.
***
We look at the previous stages of the treaty reform process.
The European Convention proposed the following Article III-171 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/60):
Section 4
Judicial cooperation in criminal matters
Article III-171 Draft Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-172.
European laws or framework laws shall establish measures to:
(a) establish rules and procedures to ensure the recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) encourage the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. In order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules concerning:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council of Ministers has identified in advance by a European decision. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament.
Adoption of such minimum rules shall not prevent Member States from maintaining or introducing a higher level of protection for the rights of individuals in criminal procedure.
***
The IGC 2004 took over, with modifications, the draft text in the first and second paragraph of Article III-270 of the Treaty establishing a Constitution for Europe, but the IGC 2004 added a third and fourth paragraph (OJ 16.12.2004 C 310/118–119):
Section 4
Judicial cooperation in criminal matters
Article III-270 Constitution
1. Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article III-271.
European laws or framework laws shall establish measures to:
(a) lay down rules and procedures for ensuring recognition throughout the Union of all forms of judgments and judicial decisions;
(b) prevent and settle conflicts of jurisdiction between Member States;
(c) support the training of the judiciary and judicial staff;
(d) facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.
2. To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross‑border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from maintaining or introducing a higher level of protection for individuals.
3. Where a member of the Council considers that a draft European framework law as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft framework law be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:
(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or
(b) request the Commission or the group of Member States from which the draft originates to submit a new draft; in that case, the act originally proposed shall be deemed not to have been adopted.
4. If, by the end of the period referred to in paragraph 3, either no action has been taken by the European Council or if, within 12 months from the submission of a new draft under paragraph 3(b), the European framework law has not been adopted, and at least one third of the Member States wish to establish enhanced cooperation on the basis of the draft framework law concerned, they shall notify the European Parliament, the Council and the Commission accordingly.
In such a case, the authorisation to proceed with enhanced cooperation referred to in Articles I-44(2) and III-419(1) shall be deemed to be granted and the provisions on enhanced cooperation shall apply.
***
The current Article 31 TEU is part of Title VI ‘Provisions on police and judicial cooperation in criminal matters’, which is based on intergovernmental cooperation and constitutes the so called third pillar.
The objective of the European Convention was to form a more unified area of freedom, security and justice, by abolishing the pillar structure and moving the remaining third pillar matters under the same heading with those justice and home affairs questions, where Community or first pillar procedures applied already.
The draft Constitution re-wrote the main provision on judicial cooperation in criminal matters by clearly endorsing the principle of mutual recognition and the practice of approximation (harmonisation) of laws.
When the governments met in the IGC 2004, they accepted the general approach of the European Convention, but added certain limitations. In the second paragraph, minimum rules were to be established only ‘to the extent necessary’ and these rules were to ‘take into account the differences between the legal traditions and systems of the Member States’.
The new third paragraph instituted the so called emergency brake for each member state which considered that a draft framework law (directive) would affect fundamental aspects of its criminal justice system, but on the other hand, if the proposed act came to nothing, a group of member states could establish enhanced cooperation on the basis of the proposed draft law, as stated in paragraph 4.
The Treaty of Lisbon used its own terminology, and it streamlined paragraphs 3 and 4 on the emergency brake and enhanced cooperation, but essentially it adopted the text agreed by the IGC 2004.
***
In addition to opting out, watering down proposals made by the European Convention was described as a victory for the United Kingdom government. The Foreign and Commonwealth Office (FCO) offered the following summary in the ‘White Paper on the Treaty establishing a Constitution for Europe’ (Command Paper 6309, September 2004; page 11):
“The UK’s negotiating success at the IGC
At the European Council on 18 June, amendments to the Convention’s draft EU Constitution were set out in two documents, CIG 81/04 and CIG 85/04.These two documents superseded all other proposals for amendments made by either Presidency during the IGC. In total, these documents cover amendments on 80 different areas in the Treaty.
The UK advocated the amendments in 39 of the 80 areas covered (see chart at Annex 2). Examples range from criminal law, tax and social security to the provisions on animal welfare and the solidarity clause. These amendments were either initiated by the UK, initiated jointly with other Member States, or pushed by other Member States and supported by the UK.
The UK remained neutral on 38 areas where others had pushed for amendments which were of no substantive concern to the UK.
In the remaining three areas, the UK originally opposed the amendments, but we secured changes at the European Council which made them acceptable (e.g. provisions for the Union’s accession to the European Convention on Human Rights).
In short, nearly half the final changes to the Treaty were secured at UK instigation: a measure of the influence the UK had on its final form.”
Against this background followed the description of the negotiations on justice and home affairs from the British government’s point of view (page 31):
“Justice and Home Affairs
67. The Maastricht Treaty (1992) introduced co-operation on Justice and Home Affairs issues as the third pillar in the EU’s pillar structure with its own separate intergovernmental arrangements. The Constitution introduces qualified majority voting as the norm for JHA issues – a welcome consequence of abolishing the pillar structure (as the Government made clear at paragraph 82 of the September 2003 White Paper).
68. This means that no single Member State will be able to block action on issues like cross-border crime, drug trafficking, illegal immigration and terrorism. These are international issues where it is in our interest to work within the EU. But because of the differences in Member States’ legal traditions and systems, the Government, in its September 2003 White Paper, said that QMV would not be the most appropriate way of proceeding where significant harmonisation of criminal procedural law was concerned (paragraph 83). This commitment has been delivered upon. The Convention’s proposals for blanket QMV in criminal law were replaced by an emergency brake mechanism. This means that a Member State which cannot accept a criminal procedural law proposal can ‘pull the brake’. This stops the discussion in the Council and automatically refers it to the European Council where decisions are made by consensus. If it is still impossible to agree, then the enhanced co-operation provisions can be applied, without all the preliminary procedures needing to be applied. This means that if a third of Member States want to, they can go ahead by themselves. This enhanced flexibility is one of the benefits of the new Treaty.”
The Command Paper 6309 is available at:
http://www.fco.gov.uk/resources/en/pdf/pdf15/fco_beu_euct_whitepaper_sept04
***
About three years later, the UK government reported in the same vein on the IGC 2007 in ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007’ (Command Paper 7174, published 23 July 2007; page 10):
“The Mandate agreed at the June European Council stipulates that, as part of the IGC process, the UK's right not to participate in new measures in the JHA area can be made to apply even where those measures build upon earlier agreements.
The new Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a Member State's legal system. This is the so-called ‘emergency brake’. If all the members of the European Council do not unanimously agree the proposal will fall, or will go ahead only in the Member States that want it – and then only if at least one third choose to go forward in that way. This additional safeguard will be available even where the UK had previously chosen to opt-in to a proposal in these areas.”
The FCO view is available at:
http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf
***
Having looked at some historic positions concerning the “emergency brake”, we move on to a few more British views on matters relating to EU judicial cooperation in criminal matters, now with the Treaty of Lisbon in hand.
The FCO presents a short version of the Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), offering the following summary of the results with regard to Article 82 TFEU, formerly Article 69a TFEU (ToL):
“Draws on Article 31(1) TEU. Mutual recognition, as well as approximation of laws, is to be the basis for criminal judicial co-operation. Lists the areas in which minimum rules on criminal procedural law may be adopted. Decision-making moves to co-decision. A new passerelle enables the Council, by unanimity and with EP consent, to extend the scope of minimum rules that may be adopted. The adoption of minimum rules on criminal procedure is also subject to a new emergency brake procedure.”
The FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community (published 6 December 2007; pages 38–39) commented on criminal procedures:
“On criminal procedures, Article 69A goes much further than the existing Article 31(1)(c) TEU, which merely includes in the list of common actions “ensuring compatibility in rules applicable in Member States as may be necessary to improve [judicial] cooperation”. --- This is a new and potentially controversial provision. It would permit the EU to establish minimum rules relating specifically to mutual admissibility of evidence, the rights of individuals in criminal procedure, and the rights of victims of crime.”
The Research Paper 07/86, with the discussion of judicial cooperation in criminal matters continuing to page 48, is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Steve Peers commented in the Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 69a TFEU (ToL), Article 82 TFEU. He remarked on the changes agreed in the IGC 2007 Mandate and remarked (page 15):
“These changes clarify the prospect of applying an ‘emergency brake’ and the possibility of a
group of Member States applying a ‘flexibility’ procedure afterward. This is distinct from the
UK, Irish and Danish power to opt out of proposals at the outset. Note that the ‘emergency
brake’ does not apply to paragraph 1.
The voting procedure otherwise is QMV and co-decision, a change from the present unanimity
and consultation.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discusses ‘Police and judicial cooperation in criminal matters’ at length, with the pages 139 to 143 dedicated to mutual recognition, harmonisation and criminal procedure. Here are the conclusions of the Committee:
“6.152. The new Article 82(1) confers a more specifically defined power to adopt measures of judicial cooperation in criminal matters in a more extensive but exhaustive list of areas. In particular, the new Article makes specific reference for the first time to measures to settle as well as prevent conflicts of jurisdiction and to measures to support the training of national judiciaries and their staff. The new Article replaces an existing power under Article 31(1)(a) to (d) which is of uncertain and controversial width, not least because the list of areas of potential action given is both vague and non-exclusive. Overall, the clarification and definition of power in this field by the Lisbon Treaty is unlikely to involve any significant expansion of jurisdiction, although it may encourage a more active role for the EU in the listed areas.”
---
“6.160. The extent of the Union’s existing competence in the area of criminal procedure under the existing Article 31 with its nonexhaustive list of areas of potential action is one of the matters of uncertainty and controversy already mentioned. The new Article 82(2) contains a specific and exhaustive list of three areas of potential action (concerning evidence, procedure and victims’ rights). Other areas can only be added by unanimous Council decision after obtaining the European Parliament’s consent.
6.161. Action in any of these areas is for the first time expressly limited to the extent necessary to facilitate mutual recognition of judgments and decisions and police cooperation in criminal matters “having a crossborder dimension”. The three specific areas listed are all areas where in practice the Union has been seeking in recent years to promote measures.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Monday, 5 May 2008
EU TFEU: Judicial cooperation in civil matters
For citizens and businesses with cross-border contacts, EU judicial cooperation in civil matters is potentially important. The Treaty of Lisbon re-writes, clarifies and expands the current treaty provisions, but for families the attainment of cross-border rules is subject to national vetoes more limiting than even today.
***
Article 81 of the Treaty on the Functioning of the European Union (TFEU) marks the beginning and the end of a new Chapter 3 on judicial cooperation in civil matters. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 102–103), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 3 ‘Judicial cooperation in civil matters’
Article 81 TFEU
(ex Article 65 TEC)
1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.
The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.
***
In Article 2, point 66, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated:
66) Article 65 shall be replaced by the following Chapter 3 and Article 65.
Then followed the wording (as above) of the new Article 65 TFEU (ToL), which became Article 81 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/61–62, 209).
***
Article 65 of the current Treaty establishing the European Community (TEC) is found in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/68–69):
Article 65 TEC
Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include:
(a) improving and simplifying:
— the system for cross-border service of judicial and extrajudicial documents,
— cooperation in the taking of evidence,
— the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
***
The European Convention proposed the following expanded Article III-170 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
SECTION 3
Judicial cooperation in civil matters
Article III-170 Draft Constitution
1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. To this end, laws or framework laws shall lay down measures aimed inter alia at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) a high level of access to justice;
(f) the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be laid down in a European law or framework law of the Council of Ministers. The Council of Ministers shall act unanimously after consulting the European Parliament.
The Council of Ministers, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council of Ministers shall act unanimously after consulting the European Parliament.
***
The IGC 2004 took over the draft text in Article III-269 of the Treaty establishing a Constitution for Europe with a few modifications (OJ 16.12.2004 C 310/117):
SECTION 3
JUDICIAL COOPERATION IN CIVIL MATTERS
Article III-269 Constitution
1. The Union shall develop judicial cooperation in civil matters having cross‑border implications, based on the principle of mutual recognition of judgments and decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, European laws or framework laws shall establish measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:
(a) the mutual recognition and enforcement between Member States of judgments and decisions in extrajudicial cases;
(b) the cross-border service of judicial and extrajudicial documents;
(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;
(d) cooperation in the taking of evidence;
(e) effective access to justice;
(f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement;
(h) support for the training of the judiciary and judicial staff.
3. Notwithstanding paragraph 2, a European law or framework law of the Council shall establish measures concerning family law with cross-border implications. The Council shall act unanimously after consulting the European Parliament.
The Council, on a proposal from the Commission, may adopt a European decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.
***
Although the current Article 65 TEC includes much of the subject matter, the European Convention re-wrote, clarified and expanded the provision in Article III-170 of the draft Constitution. The ordinary legislative procedure became the main rule, instead of the complex procedures referred to in Article 67 TEC (although these lost their meaning after the transitional period and later after the adoption of co-decision, except for aspects relating to family law).
The Constitutional Treaty was, in essence, the same as the draft Constitution, but with some modifications. In addition to ‘stylistic’ changes, the IGC added the reference ‘particularly when necessary for the proper functioning of the internal market’ to paragraph 2, and ‘a high level of access to justice’ became ‘effective access to justice’ in point (e) of that paragraph.
Article 65 TFEU (ToL), renumbered Article 81 TFEU, takes over the text of the Constitutional Treaty with general editorial changes, except for one essential addition.
This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(k), page 8) which stated, with the IGC 2004 as its basis:
“In the Chapter on judicial cooperation in civil matters, paragraph 3 of the Article on such cooperation, as agreed in the 2004 IGC, will be modified so as to give a role to national parliaments in the “passerelle” clause on family law (see point 2(b) of Annex 2).”
Annex 2, point 2(b), page 15, gave the proposed wording of the new third subparagraph of paragraph 3, only stylistically changed during the IGC 2007.
In other words, family law will continue to be an area, where unanimity in the Council is required, and moving parts of decision-making (“passerelle clause”) in family law matters with cross-border implications to the ordinary legislative procedure can be vetoed by any member state government and national parliament.
From the viewpoint of cross-border families, this may look as the camel and the eye of the needle.
***
To serve as introductory reading, both political and legal, let us take a look at a few British views on matters relating to cross-border families and other questions relating to EU judicial cooperation in civil matters.
In ‘The Reform Treaty: the British approach to the European Union intergovernmental conference, July 2007 (Command Paper 7174), the UK Foreign and Commonwealth Office had this to say (published 23 July 2008; page 10):
“The Reform Treaty retains the requirement for unanimity (i.e. a UK veto) for measures concerning family law with cross border implications. In addition, it will include a provision enabling a single national Parliament to veto any move to use the ‘minipasserelle’, which would allow for decision making on aspects of family law with crossborder implications to be changed from unanimity to co-decision and QMV.”
The FCO view is available at:
http://www.official-documents.gov.uk/document/cm71/7174/7174.pdf
The brief version of the Lisbon Treaty amendments was presented by the FCO 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 81 TFEU, Article 65 TFEU (ToL):
“Draws on Articles 65 and 67(5) TEC. Adds new references to mutual recognition of judgments and decisions, access to justice, alternative dispute settlement methods, and support for judicial training. Existing passerelle to move aspects of family law to co-decision, now subject to a veto by any national parliament.”
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; page 37) commented upon the UK position and family law (page 38):
“The UK has the option to opt in to measures under this Article. With regard to decisions on family law, the TFEU retains the requirement to act by unanimity under the OLP, but expands on the 2004 text with a ‘red card’ mechanism by which proposals will be notified to national parliaments, which will be able to make known their opposition within six months and thereby prevent its adoption.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Steve Peers has a lengthy comment on the various aspects of the Lisbon Treaty provision in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 65 TFEU (ToL), Article 81 TFEU. Here, just a short quote on the possibility to move to qualified majority voting and co-decision in family law matters (page 12):
“This actually gives more power to national parliaments over this issue than they have at present.”
The JHA analysis and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Civil justice’ on pages 137 to 139. The conclusions of the Committee are on page 139:
“6.140. The power under the current Article 65 to adopt measures of judicial cooperation in civil matters is itself potentially broad, since the list of areas of potential action given is non-exclusive. Article 81 contains a more extensive list of areas of potential action. However, these in practice are areas in which cooperation has already been undertaken under the current Article, and the list given is exhaustive.
6.141. In lieu of the present absolute requirement that measures taken be necessary for the proper functioning of the internal market, Article 81 provides that measures may be taken “particularly when” so necessary. But, under both existing Article 65 and new Article 81, such measures are only permissible in civil measures “having crossborder implications”, itself a significant limitation. Both the existing and the new articles are capable of giving rise to differences of view regarding the scope of their application in particular situations, and we doubt whether this is much affected by the changes in Article 81. This is an area where the new powers of national parliaments to police the subsidiarity principle (see Chapter 11) may be particularly important. We consider the requirement that there should be “cross-border implications” or “a cross-border dimension” further below.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
Ralf Grahn
Sunday, 4 May 2008
EU TFEU: Solidarity clause: Borders, asylum and immigration
The EU Treaty of Lisbon evokes the principle of solidarity and fair sharing of responsibility with regard to the policies on border checks, asylum and immigration.
The countries managing the eastern and southern external borders of the European Union feel the pressures on a daily basis, but failures at the borders have consequences for the whole Union.
***
Article 80 of the Treaty on the Functioning of the European Union (TFEU) evokes the principle of solidarity between member states in the policies concerning border checks, asylum and immigration. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 102), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 80 TFEU
The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 63b TFEU (ToL), which became Article 80 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 61, 209).
**
According to the tables of equivalences in the Treaty of Lisbon and the Council’s consolidated version and under the Article number, there is no corresponding Article in the current Treaty establishing the European Community (TEC).
***
The European Convention proposed the following Article III-169 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
Article III-169 Draft Constitution
The policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the acts of the Union adopted pursuant to this Section shall contain appropriate measures to give effect to this principle.
***
Article III-268 of the Treaty establishing a Constitution for Europe replaced ‘acts of the Union’ by ‘Union acts’, but made no other change (OJ 16.12.2004 C 310/116).
Between the Constitutional Treaty and the Treaty of Lisbon, only the general replacement of ‘Section’ by ‘Chapter’ has taken place.
In essence, the solidarity clause is the child of the European Convention, although it has been shifted between two IGC foster homes.
***
Let us check our conclusions this far against ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO). The comparative table offers the following quick view of Article 80 TFEU, before renumbering Article 63b ToL TFEU:
“Draws on Article 63(2)(b) TEC, but extends the principles of burden sharing and solidarity between Member States to all EU measures based on Chapter 2.”
The useful FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
This gives us cause to look at the current Article 63, point 2b, TEC. In the latest consolidated version of the existing treaties, we find the following words (OJ 29.12.2006 C 321 E/67):
“The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
---
2. measures on refugees and displaced persons within the following areas:
---
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;”
---
Admittedly, the FCO can point to the germ of the idea of burden sharing at the treaty level, although the link is rather weak.
On the other hand, it is just as easy to understand that the drafters of the TFEU have indicated no corresponding TEC provision. In the same vein, 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; page 37) concluded:
“Article 63b (Constitution Article III-268) requires that the principle of solidarity and the “fair sharing of responsibility” be observed in this area. This is new and has no equivalent in Title IV TEC.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Likewise, Steve Peers commented in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 63b ToL, Article 80 TFEU:
“This provision is new as compared to the current Treaty.”
This and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Borders, asylum, immigration and visas’ on pages 133 to 137. The report concluded on page 135:
“6.121. New Article 80 provides that the Union’s policies in this Chapter and their implementation “shall be governed by the principle of solidarity and fair sharing of responsibility”. This appears to strengthen the existing Article 63(2)(b) provision which provides for measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Regardless of the novelty or not of the treaty level provision, in the real world, however, the member states managing the EU’s external borders bear the brunt of monitoring the borders and carrying out the necessary border checks, handling applications for asylum and stemming the flood of illegal immigrants and combating the trafficking in human beings.
Therefore, especially for the member states with the eastern and southern borders of the European Union, the questions of solidarity and a fair sharing of burdens are evoked on a daily basis. In the absence of internal border checks, immigrants – legal and illegal – can move freely once inside the EU. Failures at the external borders or unilateral moves like mass naturalisations have consequences for the rest of the European Union. There are causes for concerted action and the sharing of burdens.
As the UK House of Lords European Union Committee stated on the proposed solidarity principle in its report ‘FRONTEX: the EU external borders agency’ (published 5 March 2008, HL Paper 60, page 37):
“We do not think the Member States need wait until 1 January 2009, when it is planned that this provision will come into force, before giving effect to its principles.”
The FRONTEX report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf
Ralf Grahn
The countries managing the eastern and southern external borders of the European Union feel the pressures on a daily basis, but failures at the borders have consequences for the whole Union.
***
Article 80 of the Treaty on the Functioning of the European Union (TFEU) evokes the principle of solidarity between member states in the policies concerning border checks, asylum and immigration. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; page 102), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 80 TFEU
The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted pursuant to this Chapter shall contain appropriate measures to give effect to this principle.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 63b TFEU (ToL), which became Article 80 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 61, 209).
**
According to the tables of equivalences in the Treaty of Lisbon and the Council’s consolidated version and under the Article number, there is no corresponding Article in the current Treaty establishing the European Community (TEC).
***
The European Convention proposed the following Article III-169 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
Article III-169 Draft Constitution
The policies of the Union set out in this Section and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the acts of the Union adopted pursuant to this Section shall contain appropriate measures to give effect to this principle.
***
Article III-268 of the Treaty establishing a Constitution for Europe replaced ‘acts of the Union’ by ‘Union acts’, but made no other change (OJ 16.12.2004 C 310/116).
Between the Constitutional Treaty and the Treaty of Lisbon, only the general replacement of ‘Section’ by ‘Chapter’ has taken place.
In essence, the solidarity clause is the child of the European Convention, although it has been shifted between two IGC foster homes.
***
Let us check our conclusions this far against ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO). The comparative table offers the following quick view of Article 80 TFEU, before renumbering Article 63b ToL TFEU:
“Draws on Article 63(2)(b) TEC, but extends the principles of burden sharing and solidarity between Member States to all EU measures based on Chapter 2.”
The useful FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
This gives us cause to look at the current Article 63, point 2b, TEC. In the latest consolidated version of the existing treaties, we find the following words (OJ 29.12.2006 C 321 E/67):
“The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
---
2. measures on refugees and displaced persons within the following areas:
---
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;”
---
Admittedly, the FCO can point to the germ of the idea of burden sharing at the treaty level, although the link is rather weak.
On the other hand, it is just as easy to understand that the drafters of the TFEU have indicated no corresponding TEC provision. In the same vein, 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; page 37) concluded:
“Article 63b (Constitution Article III-268) requires that the principle of solidarity and the “fair sharing of responsibility” be observed in this area. This is new and has no equivalent in Title IV TEC.”
The Research Paper 07/86 is available at:
http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf
Likewise, Steve Peers commented in Statewatch analysis ‘EU Reform Treaty: Analysis 1: Version 3 JHA provisions’ (22 October 2007) on what was to become Article 63b ToL, Article 80 TFEU:
“This provision is new as compared to the current Treaty.”
This and other Statewatch analyses are available through:
http://www.statewatch.org/euconstitution.htm
The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed ‘Borders, asylum, immigration and visas’ on pages 133 to 137. The report concluded on page 135:
“6.121. New Article 80 provides that the Union’s policies in this Chapter and their implementation “shall be governed by the principle of solidarity and fair sharing of responsibility”. This appears to strengthen the existing Article 63(2)(b) provision which provides for measures promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons.”
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Regardless of the novelty or not of the treaty level provision, in the real world, however, the member states managing the EU’s external borders bear the brunt of monitoring the borders and carrying out the necessary border checks, handling applications for asylum and stemming the flood of illegal immigrants and combating the trafficking in human beings.
Therefore, especially for the member states with the eastern and southern borders of the European Union, the questions of solidarity and a fair sharing of burdens are evoked on a daily basis. In the absence of internal border checks, immigrants – legal and illegal – can move freely once inside the EU. Failures at the external borders or unilateral moves like mass naturalisations have consequences for the rest of the European Union. There are causes for concerted action and the sharing of burdens.
As the UK House of Lords European Union Committee stated on the proposed solidarity principle in its report ‘FRONTEX: the EU external borders agency’ (published 5 March 2008, HL Paper 60, page 37):
“We do not think the Member States need wait until 1 January 2009, when it is planned that this provision will come into force, before giving effect to its principles.”
The FRONTEX report is available at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/60/60.pdf
Ralf Grahn
Saturday, 3 May 2008
EU TFEU: Common immigration policy
The EU Treaty of Lisbon introduces the objective of a common immigration policy and qualified majority voting in the Council and the ordinary legislative procedure for legal immigration, subject to the member states’ continued competence to regulate the inflow of migrants from third countries.
***
Article 79 of the Treaty on the Functioning of the European Union (TFEU) deals with the development of the EU’s common immigration policy. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 101–102), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 79 TFEU
(ex Article 63, points 3 and 4, TEC)
1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:
(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;
(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;
(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;
(d) combating trafficking in persons, in particular women and children.
3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States.
4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.
5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of Article 63a TFEU (ToL), which became Article 79 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 60–61).
**
The current Article 63, points 3 and 4 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/67–68):
Article 63 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
---
3. measures on immigration policy within the following areas:
(a) conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;
(b) illegal immigration and illegal residence, including repatriation of illegal residents;
4. measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.
Measures adopted by the Council pursuant to points 3 and 4 shall not prevent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.
Measures to be adopted pursuant to points 2(b), 3(a) and 4 shall not be subject to the five-year period referred to above.
***
The European Convention proposed the following Article III-168 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
Article III-168 Draft Constitution
1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.
2. To this end, European laws or framework laws shall establish measures in the following areas:
(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;
(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;
(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;
(d) combating trafficking in persons, in particular women and children.
3. The Union may conclude readmission agreements with third countries for the readmission of third-country nationals residing without authorisation to their countries of origin or provenance, in accordance with Article III-227.
4. European laws or framework laws may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.
5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.
***
Article III-267 of the Treaty establishing a Constitution for Europe made cosmetic changes in paragraph 2 and 3 without altering the substance of the draft (OJ 16.12.2004 C 310/116).
Between the IGC 2004 and the IGC 2007 ‘European laws or framework laws’ became ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure’, as in the rest of the amending treaties. In paragraph 2(a) ‘family reunion’ became the less festive ‘family reunification’.
Essentially, Article 79 TFEU is the creation of the European Convention.
***
What changes between the current TEC and the new Article 79 TFEU (Article 63a ToL)?
‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO), offers a quick view, almost in SMS text message style:
“Draws on Article 63(3) and (4), with changes reflecting the new objective of developing a common immigration policy. Measures on legal migration move to co-decision.”
The useful FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 ‘Borders, asylum, immigration and visas’ on pages 133 to 137.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
As an afterthought to the comment by Alfred the Ordinary on the previous blog post, which dealt with the genesis of Article 78 TFEU on the common policy on asylum, subsidiary protection and temporary protection, here is an attempt to distinguish between different kinds of movement of persons:
I Inside: EU citizens and dependants moving inside the European Union are dealt with in TFEU Part Two ‘Non-discrimination and citizenship of the Union’ (Articles 18 to 25) and in Title IV ‘Free movement of persons, services and capital’, especially Chapter 1 ‘Workers’. The basic act of secondary legislation is the so called Citizenship Directive 2004/38/EC. A patchwork of temporary restrictions applies across many member states as regards the 2004 and 2007 accession countries.
II Outside 1: Applicants for refugee status and those awarded protection fall within the scope of Article 78 TFEU, the subject of yesterday’s blog post.
II Outside 2: The common immigration policy aims at the efficient management of migration flows from third countries (outside the EU). The bare bones treatment of Article 79 TFEU, the new treaty base for action, was the theme of today’s blog article.
***
In the real world, these distinct areas are both important and contentious, with human, economic, societal and political consequences in a European Union with an ageing population and looming skills shortages.
Ralf Grahn
***
Article 79 of the Treaty on the Functioning of the European Union (TFEU) deals with the development of the EU’s common immigration policy. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 101–102), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 79 TFEU
(ex Article 63, points 3 and 4, TEC)
1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures in the following areas:
(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunification;
(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;
(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;
(d) combating trafficking in persons, in particular women and children.
3. The Union may conclude agreements with third countries for the readmission to their countries of origin or provenance of third-country nationals who do not or who no longer fulfil the conditions for entry, presence or residence in the territory of one of the Member States.
4. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.
5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of Article 63a TFEU (ToL), which became Article 79 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58, 60–61).
**
The current Article 63, points 3 and 4 of the Treaty establishing the European Community (TEC), to be replaced, is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/67–68):
Article 63 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
---
3. measures on immigration policy within the following areas:
(a) conditions of entry and residence, and standards on procedures for the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;
(b) illegal immigration and illegal residence, including repatriation of illegal residents;
4. measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.
Measures adopted by the Council pursuant to points 3 and 4 shall not prevent any Member State from maintaining or introducing in the areas concerned national provisions which are compatible with this Treaty and with international agreements.
Measures to be adopted pursuant to points 2(b), 3(a) and 4 shall not be subject to the five-year period referred to above.
***
The European Convention proposed the following Article III-168 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/59):
Article III-168 Draft Constitution
1. The Union shall develop a common immigration policy aimed at ensuring, at all stages, the efficient management of migration flows, fair treatment of third-country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat, illegal immigration and trafficking in human beings.
2. To this end, European laws or framework laws shall establish measures in the following areas:
(a) the conditions of entry and residence, and standards on the issue by Member States of long-term visas and residence permits, including those for the purpose of family reunion;
(b) the definition of the rights of third-country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States;
(c) illegal immigration and unauthorised residence, including removal and repatriation of persons residing without authorisation;
(d) combating trafficking in persons, in particular women and children.
3. The Union may conclude readmission agreements with third countries for the readmission of third-country nationals residing without authorisation to their countries of origin or provenance, in accordance with Article III-227.
4. European laws or framework laws may establish measures to provide incentives and support for the action of Member States with a view to promoting the integration of third-country nationals residing legally in their territories, excluding any harmonisation of the laws and regulations of the Member States.
5. This Article shall not affect the right of Member States to determine volumes of admission of third-country nationals coming from third countries to their territory in order to seek work, whether employed or self-employed.
***
Article III-267 of the Treaty establishing a Constitution for Europe made cosmetic changes in paragraph 2 and 3 without altering the substance of the draft (OJ 16.12.2004 C 310/116).
Between the IGC 2004 and the IGC 2007 ‘European laws or framework laws’ became ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure’, as in the rest of the amending treaties. In paragraph 2(a) ‘family reunion’ became the less festive ‘family reunification’.
Essentially, Article 79 TFEU is the creation of the European Convention.
***
What changes between the current TEC and the new Article 79 TFEU (Article 63a ToL)?
‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008), by the UK Foreign and Commonwealth Office (FCO), offers a quick view, almost in SMS text message style:
“Draws on Article 63(3) and (4), with changes reflecting the new objective of developing a common immigration policy. Measures on legal migration move to co-decision.”
The useful FCO comparative table is available at:
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp
***
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 ‘Borders, asylum, immigration and visas’ on pages 133 to 137.
The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
As an afterthought to the comment by Alfred the Ordinary on the previous blog post, which dealt with the genesis of Article 78 TFEU on the common policy on asylum, subsidiary protection and temporary protection, here is an attempt to distinguish between different kinds of movement of persons:
I Inside: EU citizens and dependants moving inside the European Union are dealt with in TFEU Part Two ‘Non-discrimination and citizenship of the Union’ (Articles 18 to 25) and in Title IV ‘Free movement of persons, services and capital’, especially Chapter 1 ‘Workers’. The basic act of secondary legislation is the so called Citizenship Directive 2004/38/EC. A patchwork of temporary restrictions applies across many member states as regards the 2004 and 2007 accession countries.
II Outside 1: Applicants for refugee status and those awarded protection fall within the scope of Article 78 TFEU, the subject of yesterday’s blog post.
II Outside 2: The common immigration policy aims at the efficient management of migration flows from third countries (outside the EU). The bare bones treatment of Article 79 TFEU, the new treaty base for action, was the theme of today’s blog article.
***
In the real world, these distinct areas are both important and contentious, with human, economic, societal and political consequences in a European Union with an ageing population and looming skills shortages.
Ralf Grahn
Friday, 2 May 2008
EU TFEU: Common asylum policy
The EU Treaty of Lisbon brings the new objective of a common asylum policy and clearer treaty provisions.
***
Article 78 of the Treaty on the Functioning of the European Union (TFEU), deals with the development of the EU’s common asylum policy. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 100–101), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 78 TFEU
(ex Articles 63, points 1 and 2, and 64(2) TEC)
1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:
(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;
(c) a common system of temporary protection for displaced persons in the event of a massive inflow;
(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;
(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;
(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;
(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.
3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of Article 63 TFEU (ToL), which became Article 78 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58–60).
***
The current Article 63, points 1 and 2, and Article 64(2) TEC, to be replaced, are found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/67–68):
Article 63, points 1 and 2, TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas:
(a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States;
(b) minimum standards on the reception of asylum seekers in Member States;
(c) minimum standards with respect to the qualification of nationals of third countries as refugees;
(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;
2. measures on refugees and displaced persons within the following areas:
(a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection;
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;
---
Article 64(2) TEC
---
2. In the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries and without prejudice to paragraph 1, the Council may, acting by qualified majority on a proposal from the Commission, adopt provisional measures of a duration not exceeding six months for the benefit of the Member States concerned.
***
Having seen the current treaty base (‘de lege lata’) concerning asylum, we turn to the stages of the treaty reform process leading up to the Treaty of Lisbon.
First, the European Convention, which proposed the following Article III-167 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58–59):
Article III-167 Draft Constitution
1. The Union shall develop a common policy on asylum and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties.
2. For this purpose, European laws or framework laws shall lay down measures for a common European asylum system comprising:
(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;
(c) a common system of temporary protection for displaced persons in the event of a massive inflow;
(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;
(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;
(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;
(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.
3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council of Ministers, on a proposal from the Commission, may adopt European regulations or decisions comprising provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.
***
In Article III-266 of the Treaty establishing a Constitution for Europe, the IGC 2004 agreed on a few cosmetic changes, like adding the words ‘subsidiary protection’ (concerning protection on humanitarian grounds) to the first paragraph and referring to ‘the purposes of paragraph 1’ in the second paragraph, but there was no substantial change to the Convention’s draft text (OJ 16.12.2004 C 310/115–116).
***
In turn, the IGC 2007 took over the wording of the Constitutional Treaty unchanged, save for retaining the present, more primitive system to name and distinguish legal acts.
***
Thus, the Treaty of Lisbon introduces the reform proposed by the European Convention; in a nutshell: the objective of a common asylum policy instead of mere minimum standards.
The ordinary legislative procedure (co-decision) is expressed in a less convoluted way than at present, when Article 63 TEC refers to Article 67 TEC, where the co-decision procedure (Article 251 TEC) as regards asylum measures was introduced in paragraph 5 as a derogation from the initial five year period requiring unanimity in the Council according to paragraph 1.
If the solidarity clause is evoked, the European Parliament is at least heard.
***
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 ‘Borders, asylum, immigration and visas’ on pages 133 to 137. The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Among British general textbooks on EU Law, Paul Craig and Gráinne de Búrca: EU Law – Texts, Cases, and Materials (4th Edition, Oxford University Press, 2007) is welcome because it offers a distinct Chapter 7 on the area of freedom, security, and justice (page 229 to 267).
In my opinion, a satisfactory understanding of EU dynamics requires more than general principles, judicial review and the common market plus competition law. The common foreign and security policy, including the common security and defence policy, and the area of freedom, security and justice as well as the other EC (EU) policies would require a fair treatment in general course-books (not only specialist treatises), possibly in separate volumes on institutional and substantive law (and politics). Naturally, the Treaty of Lisbon offers another option: an approach based on the partly new division between the reformed TEU and the TFEU, but suitably modified to take account of the interdependence of the treaties.
Ralf Grahn
Consolidated Lisbon Treaty and other materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
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
***
Article 78 of the Treaty on the Functioning of the European Union (TFEU), deals with the development of the EU’s common asylum policy. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 100–101), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 78 TFEU
(ex Articles 63, points 1 and 2, and 64(2) TEC)
1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:
(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;
(c) a common system of temporary protection for displaced persons in the event of a massive inflow;
(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;
(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;
(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;
(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.
3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of Article 63 TFEU (ToL), which became Article 78 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58–60).
***
The current Article 63, points 1 and 2, and Article 64(2) TEC, to be replaced, are found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/67–68):
Article 63, points 1 and 2, TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas:
(a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States;
(b) minimum standards on the reception of asylum seekers in Member States;
(c) minimum standards with respect to the qualification of nationals of third countries as refugees;
(d) minimum standards on procedures in Member States for granting or withdrawing refugee status;
2. measures on refugees and displaced persons within the following areas:
(a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection;
(b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons;
---
Article 64(2) TEC
---
2. In the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries and without prejudice to paragraph 1, the Council may, acting by qualified majority on a proposal from the Commission, adopt provisional measures of a duration not exceeding six months for the benefit of the Member States concerned.
***
Having seen the current treaty base (‘de lege lata’) concerning asylum, we turn to the stages of the treaty reform process leading up to the Treaty of Lisbon.
First, the European Convention, which proposed the following Article III-167 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58–59):
Article III-167 Draft Constitution
1. The Union shall develop a common policy on asylum and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties.
2. For this purpose, European laws or framework laws shall lay down measures for a common European asylum system comprising:
(a) a uniform status of asylum for nationals of third countries, valid throughout the Union;
(b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection;
(c) a common system of temporary protection for displaced persons in the event of a massive inflow;
(d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status;
(e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection;
(f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection;
(g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection.
3. In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council of Ministers, on a proposal from the Commission, may adopt European regulations or decisions comprising provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament.
***
In Article III-266 of the Treaty establishing a Constitution for Europe, the IGC 2004 agreed on a few cosmetic changes, like adding the words ‘subsidiary protection’ (concerning protection on humanitarian grounds) to the first paragraph and referring to ‘the purposes of paragraph 1’ in the second paragraph, but there was no substantial change to the Convention’s draft text (OJ 16.12.2004 C 310/115–116).
***
In turn, the IGC 2007 took over the wording of the Constitutional Treaty unchanged, save for retaining the present, more primitive system to name and distinguish legal acts.
***
Thus, the Treaty of Lisbon introduces the reform proposed by the European Convention; in a nutshell: the objective of a common asylum policy instead of mere minimum standards.
The ordinary legislative procedure (co-decision) is expressed in a less convoluted way than at present, when Article 63 TEC refers to Article 67 TEC, where the co-decision procedure (Article 251 TEC) as regards asylum measures was introduced in paragraph 5 as a derogation from the initial five year period requiring unanimity in the Council according to paragraph 1.
If the solidarity clause is evoked, the European Parliament is at least heard.
***
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 ‘Borders, asylum, immigration and visas’ on pages 133 to 137. The report is accessible at:
http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf
***
Among British general textbooks on EU Law, Paul Craig and Gráinne de Búrca: EU Law – Texts, Cases, and Materials (4th Edition, Oxford University Press, 2007) is welcome because it offers a distinct Chapter 7 on the area of freedom, security, and justice (page 229 to 267).
In my opinion, a satisfactory understanding of EU dynamics requires more than general principles, judicial review and the common market plus competition law. The common foreign and security policy, including the common security and defence policy, and the area of freedom, security and justice as well as the other EC (EU) policies would require a fair treatment in general course-books (not only specialist treatises), possibly in separate volumes on institutional and substantive law (and politics). Naturally, the Treaty of Lisbon offers another option: an approach based on the partly new division between the reformed TEU and the TFEU, but suitably modified to take account of the interdependence of the treaties.
Ralf Grahn
Consolidated Lisbon Treaty and other materials:
If you want to read or download the Council’s consolidated Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) as amended by the Lisbon Treaty, the original Treaty of Lisbon, the current TEU and TEC, the Draft Constitution, the Constitutional Treaty, or other consolidated language versions of the Lisbon Treaty TEU and TFEU, you find the needed information and links in the blawg post ‘Consolidated Treaty of Lisbon and other EU materials’ of 21 April 2008:
http://grahnlaw.blogspot.com/2008/04/consolidated-treaty-of-lisbon-and-other.html
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
Thursday, 1 May 2008
EU TFEU: Border checks, asylum and immigration
The EU’s common external borders are meant to lead to an integrated management system in the long run, according to the Treaty of Lisbon. Legislation is envisaged for visas and external border checks.
***
Article 77 of the Treaty on the Functioning of the European Union (TFEU), starts Chapter 2 with provisions on border checks, asylum and immigration. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 99–100), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 77 TFEU
(ex Article 62 TEC)
1. The Union shall develop a policy with a view to:
(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;
(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;
(c) the gradual introduction of an integrated management system for external borders.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:
(a) the common policy on visas and other short-stay residence permits;
(b) the checks to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;
(d) any measure necessary for the gradual establishment of an integrated management system for external borders;
(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.
3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a) [originally, Article 17(2)(a) TFEU (ToL)], and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.
4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 62 TFEU (ToL), which became Article 77 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58–59).
***
The current Article 62 TEC, to be replaced, is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/66–67):
Article 62 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;
2. measures on the crossing of the external borders of the Member States which shall establish:
(a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders;
(b) rules on visas for intended stays of no more than three months, including:
(i) the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;
(ii) the procedures and conditions for issuing visas by Member States;
(iii) a uniform format for visas;
(iv) rules on a uniform visa;
3. measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months.
***
The European Convention proposed the following Article III-166 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
SECTION 2
Policies on border checks, asylum and immigration
Article III-166 Draft Constitution
1. The Union shall develop a policy with a view to:
(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;
(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;
(c) the gradual introduction of an integrated management system for external borders.
2. For this purpose, European laws or framework laws shall establish measures concerning:
(a) the common policy on visas and other short-stay residence permits;
(b) the controls to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;
(d) any measure necessary for the gradual establishment of an integrated management system for external borders;
(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.
3. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.
***
Article III-265 of the Treaty establishing a Constitution for Europe was almost identical to the draft (OJ 16.12.2004 C 310/114–115).
***
Parts of the current Article 62 TEC had become redundant when five years had passed from the May 1999 entry into force of the Treaty of Amsterdam.
In essence, the IGC 2007 took over the text of the draft Treaty and the Constitutional Treaty including the ordinary legislative procedure, with one exception:
The new third paragraph of Article 77 TFEU on the special legislative procedure, requiring unanimity in the Council, with regard to identity cards, residence permits and other documents of the kind is a novelty, since the current Article 18(3) TEC excludes action in this area. This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(d), page 7).
***
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 ‘Borders, asylum, immigration and visas’ on pages 133 to 137. 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
***
Article 77 of the Treaty on the Functioning of the European Union (TFEU), starts Chapter 2 with provisions on border checks, asylum and immigration. The Article is presented as it stands after the intergovernmental conference (IGC 2007) in the Treaty of Lisbon (ToL), then renumbered and provisionally consolidated by the Council of the European Union (document 6655/08; pages 99–100), with the location of the provision added from the table of equivalences (page 460 to 463):
Part Three ‘Policies and internal actions of the Union’
Title V TFEU ‘Area of freedom, security and justice’
Chapter 2 ‘Policies on border checks, asylum and immigration’
Article 77 TFEU
(ex Article 62 TEC)
1. The Union shall develop a policy with a view to:
(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;
(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;
(c) the gradual introduction of an integrated management system for external borders.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:
(a) the common policy on visas and other short-stay residence permits;
(b) the checks to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;
(d) any measure necessary for the gradual establishment of an integrated management system for external borders;
(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.
3. If action by the Union should prove necessary to facilitate the exercise of the right referred to in Article 20(2)(a) [originally, Article 17(2)(a) TFEU (ToL)], and if the Treaties have not provided the necessary powers, the Council, acting in accordance with a special legislative procedure, may adopt provisions concerning passports, identity cards, residence permits or any other such document. The Council shall act unanimously after consulting the European Parliament.
4. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.
***
In Article 2, point 65, of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) agreed on the wording (as above) of the new Article 62 TFEU (ToL), which became Article 77 TFEU after renumbering in the consolidated version (OJ 17.12.2007 C 306/58–59).
***
The current Article 62 TEC, to be replaced, is found in the latest consolidated version of the treaties (OJ 29.12.2006 C 321 E/66–67):
Article 62 TEC
The Council, acting in accordance with the procedure referred to in Article 67, shall, within a period of five years after the entry into force of the Treaty of Amsterdam, adopt:
1. measures with a view to ensuring, in compliance with Article 14, the absence of any controls on persons, be they citizens of the Union or nationals of third countries, when crossing internal borders;
2. measures on the crossing of the external borders of the Member States which shall establish:
(a) standards and procedures to be followed by Member States in carrying out checks on persons at such borders;
(b) rules on visas for intended stays of no more than three months, including:
(i) the list of third countries whose nationals must be in possession of visas when crossing the external borders and those whose nationals are exempt from that requirement;
(ii) the procedures and conditions for issuing visas by Member States;
(iii) a uniform format for visas;
(iv) rules on a uniform visa;
3. measures setting out the conditions under which nationals of third countries shall have the freedom to travel within the territory of the Member States during a period of no more than three months.
***
The European Convention proposed the following Article III-166 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/58):
SECTION 2
Policies on border checks, asylum and immigration
Article III-166 Draft Constitution
1. The Union shall develop a policy with a view to:
(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;
(b) carrying out checks on persons and efficient monitoring of the crossing of external borders;
(c) the gradual introduction of an integrated management system for external borders.
2. For this purpose, European laws or framework laws shall establish measures concerning:
(a) the common policy on visas and other short-stay residence permits;
(b) the controls to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;
(d) any measure necessary for the gradual establishment of an integrated management system for external borders;
(e) the absence of any controls on persons, whatever their nationality, when crossing internal borders.
3. This Article shall not affect the competence of the Member States concerning the geographical demarcation of their borders, in accordance with international law.
***
Article III-265 of the Treaty establishing a Constitution for Europe was almost identical to the draft (OJ 16.12.2004 C 310/114–115).
***
Parts of the current Article 62 TEC had become redundant when five years had passed from the May 1999 entry into force of the Treaty of Amsterdam.
In essence, the IGC 2007 took over the text of the draft Treaty and the Constitutional Treaty including the ordinary legislative procedure, with one exception:
The new third paragraph of Article 77 TFEU on the special legislative procedure, requiring unanimity in the Council, with regard to identity cards, residence permits and other documents of the kind is a novelty, since the current Article 18(3) TEC excludes action in this area. This followed from the IGC 2007 Mandate (Council document 11218/07, point 19(d), page 7).
***
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 ‘Borders, asylum, immigration and visas’ on pages 133 to 137. 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
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