EU TREATY OF LISBON - JHA

UNCLAS SECTION 01 OF 04 BRUSSELS 000892

SIPDIS

DEPT FOR EUR/ERA, INL/PC, INL/AAE, L/LEI
DEPT ALSO FOR USTR

E.O. 12958: N/A
TAGS: PREL EUM PGOV KCRM ECIN ETRD PBTS
SUBJECT: EU TREATY OF LISBON - JHA

REFs: (A) BRUSSELS 00397;

(B) BRUSSELS 00303;
(C) 2007 BRUSSELS 3488

SUMMARY
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1. Under the Treaty of Lisbon (entry in force targeted for 2009),
the current three-pillar structure of the EU will formally
disappear. Police and judicial cooperation in criminal matters --
the so-called "third pillar" -- will become subject to the
"Community" method under the renamed Treaty on the functioning of
the European Union (TFUE). Reforms in the area will include the
application of co-decision (meaning a say for the European
Parliament),qualified-majority voting (instead of unanimity) in the
Council as well as jurisdiction by the Court of Justice (ECJ).
Member States will retain the possibility of blocking measures
threatening "fundamental aspects" of their judicial systems, and
have the option of proceeding with "enhanced cooperation" among a
limited number of countries. Some Member States (UK, Ireland,
Denmark) secured the right to "opt-out" from EU measures. The new
treaty provisions on Justice and Home Affairs (JHA, renamed "Area of
Freedom, Security and Justice") also paves the way for future steps
such as the establishment of a European Public Prosecutor to protect
the financial interests of the EU.


2. This message, building on previous USEU reporting on the Treaty
of Lisbon (REFTELS),is the fourth in a series that is meant to put
forthcoming EU reforms in perspective and to describe their impact
on our relations with the EU. More messages will follow that will
focus specifically on foreign policy, defense, economic policy, and
the role of the European Parliament and national parliaments. End
Summary.

MORE DECISIONS BY QMV. . .
--------------


3. Of all the policies referred to as internal EU policies, it is
in Justice and Home Affairs (JHA or -- in EU language - the creation
of an area of justice, freedom and security) that the Treaty of
Lisbon (ToL) will bring most changes to the functioning of the EU.
Changes will occur chiefly as a result of the removal of the
"pillars," thus erasing the distinction between measures under the
current EC Treaty and those covered by the "third pillar" (REF.B).
The single framework will lead to the adoption of more decisions
using the ordinary legislative procedure (qualified-majority voting
in the Council and co-decision with the European Parliament) in
areas related to freedom, security and justice that have not been
transferred yet to the Community domain, or the so-called "first
pillar." Under the current treaty arrangements:

-- Visa, asylum and immigration issues are already governed by the
"Community method" of decision-making, under which the Commission
makes a proposal to the Council and the European Parliament, which
eventually adopt it as a piece of legislation.

-- All decisions in the areas of police cooperation, and judicial
cooperation in criminal matters, are taken by unanimity (with one
small exception relating to implementing measures for previously
agreed decisions);

-- Unanimity also remains the rule for decision-making on measures
related to legal migration and integration of non-EU nationals,
measures dealing with visa requirements for non-EU nationals, rules
on a uniform format for visas and family law.


4. Under the ToL, however, decision-making by QMV becomes the
"norm," with only a limited number of exceptions. The most
significant of these will be:

-- EU measures concerning passports, identity cards, residence
permits and other documents that go beyond the powers conferred by
the EU treaties, but which are necessary to fulfill citizens' right
to move and reside freely within the Union (Article 69 TFEU);

-- EU measures concerning family law;

-- The establishment of a European Public Prosecutor's Office
(EPPO),as well as any subsequent decision to extend the EPPO's
powers;

-- Measures concerning operational cooperation between the law
enforcement authorities and legislation setting down the conditions
and limits under which law enforcement and judicial authorities may
operate in the territory of another Member State.


BRUSSELS 00000892 002 OF 004


..AND NEW POWERS FOR PARLIAMENT
--------------


5. Under current treaty rules, consultation of the European
Parliament (EP) is the rule for all EU measures concerning police
cooperation and judicial cooperation in criminal matters, as well as
for measures relating to legal migration and family law. The new
treaty will bring major changes by granting the EP co-decision
powers in most JHA policy areas. In a limited number of other areas
where co-decision will not apply, the EP's "consent" (formerly
assent, meaning a concurring opinion) will be required. Such areas
essentially include the procedure to create the office of European
Public Prosecutor and subsequent possible moves to extend its
powers. The outstanding areas where Parliament will only have to be
consulted (meaning: an opinion is required, but Parliament has no
say on the decision) will be limited to:

-- EU measures concerning passports and other documents that go
beyond the powers conferred by the Treaties (Article 69 TFEU);

-- The adoption of temporary measures to help a Member State facing
an emergency situation caused by a sudden influx of non-EU
nationals;

-- The adoption of measures concerning family law (unless the
Council decides, by unanimity and after consulting the EP, to move
elements of this area over to co-decision);

-- Measures concerning operational cooperation between law
enforcement authorities, and legislation setting down the conditions
and limits under which law enforcement and judicial authorities may
operate in other Member States.

BUT WITH EMERGENCY BRAKES
--------------


6. The extension of QMV and co-decision could only be enshrined in
the ToL thanks to the introduction of safeguards intended to
reassure Member States fearing the impact of the changes on their
national systems. Hence the introduction of so-called "emergency
brake" provisions in the area of judicial cooperation in criminal
matters. One provision covers the establishment of minimum rules
"to facilitate mutual recognition of judgments and judicial
decisions" (Article 69e TFEU). Another covers the establishment of
minimum rules concerning "the definition of criminal offences and
sanctions in the areas of particularly serious crime with a cross
border dimension" (Article 69f TFEU). In both cases, the "emergency
brake" procedure may be triggered by a Member State that considers a
legislative proposal in this area may jeopardize fundamental aspects
of its criminal justice system. The Member State concerned may then
request that the matter be referred to the European Council
(top-level meeting of EU heads of state and government),which has
the effect of suspending the (JHA) Council's work. The European
Council must then, within a four-month period, refer the matter back
to the Council (EU ministers),thus allowing the procedure to
continue, or request the Commission or the group of countries that
took the initiative to submit a new legislative proposal. If the
European Council fails to take action within four months, or if the
new legislative procedure initiated at its request fails to produce
a result within a 12-month deadline, the Treaty provisions
concerning "enhanced cooperation" will automatically be initiated
provided at least one third of the Member States so wish.

RIGHT OF INITIATIVE: A "QUORUM" OF MEMBER STATES
-------------- ---


7. Under the current TEU, Member States may table proposals for EU
legislation alongside the Commission in the areas of police
cooperation and judicial cooperation in criminal matters. They will
be able to retain that right of initiative under the new TFUE,
although some adjustments will be brought by the ToL. Under the new
arrangements, legislative acts in these specific areas of JHA policy
may be proposed by the Commission or on the initiative of a quarter
of the Member States (Article 68 TFEU). The introduction of a
"quorum" for presenting initiatives in this area is designed to
reduce the number of initiatives failing to reflect common
interests.

EUROPEAN PUBLIC PROSECUTOR AND OTHER CHANGES
--------------


8. The new treaty includes a provision allowing for the
establishment of a European Public Prosecutor's Office (EPPO) to
combat crimes affecting the Union's financial interests (Article 69i
TFEU). The EPPO would be set up "from Eurojust" (the existing EU
agency dealing with judicial cooperation) and would be responsible

BRUSSELS 00000892 003 OF 004


for "investigating, prosecuting and bringing to judgment, where
appropriate in liaison with Europol, the perpetrators and
accomplices of offences against the EU's financial interests (read:
the EU budget). It would exercise its functions of prosecutor in
the competent courts of the EU countries "in relation to such
offences." The new treaty also allows for a further extension of
the EPPO's powers to include "serious crime having a cross-border
dimension" through a unanimous decision of the European Council and
subject to the EP's consent.


9. Further changes include:

-- A provision stating explicitly that EU action will not affect the
responsibilities of Member State governments for maintaining law and
order and preserving national security (Article 66 TFEU);

-- The establishment within the Council of a standing committee "to
ensure that operational cooperation on internal security is promoted
and strengthened within the Union" (Article 65 TFUE).

OPT-OUT/OPT-IN: REFORMS TO THE REGIME FOR UK, IRELAND
-------------- --------------


10. Under the revised treaties, the UK and Ireland will have
protocols allowing them to either "opt out" or "opt into" EU
policies concerning Schengen and the area of freedom, security and
justice. But they may exercise this privilege (granted by their
partners to secure their agreement to the reform package) only in
accordance with conditions to be established in each case by the
Council and Commission, who may be expected to try to maximize
participation and coherence. More specifically:

-- At present, the British right to "opt-in" only applies to some
areas of JHA decision-making, namely borders, asylum, immigration,
and judicial cooperation in civil matters. The "opt-in" works on
the basis that the UK is not automatically expected to join in with
the adoption and implementation of measures, but can do so whenever
it wishes. The ToL negotiators agreed that the UK's existing right
to "opt-in" could be extended under the revised treaties to cover
the areas of police cooperation, and judicial cooperation in
criminal matters (now referred to as the so-called "third pillar");

-- Ireland will benefit from the same deal as the UK. However,
there is one minor, yet noteworthy, difference between the UK and
Irish positions: Ireland's right when it wishes to "opt-in" to EU
measures will not extend to legislation proposed under Article 67a
TFEU (i.e. measures to freeze terrorist assets). Ireland will
automatically participate in the adoption and implementation of such
measures on the same basis as other Member States.


11. Further changes to be added to the "opt-out" arrangements for
the UK and Ireland under the ToL are aimed at addressing issues
raised by Council decision-making in JHA. They involve the
procedure to apply when the UK/Ireland already takes part in a JHA
measure at EU level, but does not wish to be involved in a new
legislative initiative to amend or update it. A ToL Protocol
(Protocol No 11) makes it clear that both countries have the right
not to take part in the adjustment. This could have far-reaching
repercussions as the other EU Member States would then be able to
decide, through a qualified majority vote (QMV),that the
non-participation of either the UK or Ireland would make the amended
measure "inoperable." Should the other Member States come to that
conclusion, they could force the non-participating country to
withdraw from the whole measure, not just the planned amendments
(Note: An hypothetical illustration of this would be the Council
Decisio to transpose the 2005 Pr|m Treaty into EU law, implying
that Member States' national law enforcement authorities will
network their DNA databases. Should an initiative be taken to amend
this legislation with a view to establishing a single, central
database, the UK could conceivably refuse to be bound by the
adjustment. The other Member States could then conclude it would
not be technically feasible to have one country taking part in the
information-sharing to a lesser extent than the others and the UK
could be excluded entirely. End note).


12. The Council would also be able to decide, on the basis of QMV,
whether the Member State which has to withdraw from the existing
measure should bear the financial consequences that would
"necessarily and unavoidably" arise from its withdrawal (Note: In
the DNA database example, such costs could arise from other Member
States having to make changes to their computer systems to take
account of the fact that the UK is no longer involved in the data
sharing. End note).


13. A similar question relates to the Schengen acquis and the
current "opt-out" enjoyed by the UK and Ireland (which in some ways

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has no other choice than aligning its position to the UK's in view
of specific agreements governing relations between the two Member
States in this area). At present both countries only participate in
certain aspects of the Schengen acquis (notably aspects related to
police and judicial cooperation),whereas all other EU Member States
are full participants. The ToL deals with situations where the UK
or Ireland do not wish to participate in the adoption of a piece of
Schengen-related legislation, despite the fact that the measure
would build on a measure of the "acquis" in which the country
already participates. Under the revised treaties, although the UK
and Ireland will have the right to opt out of Schengen-building
measures, they would then risk being forced to terminate their
participation in existing laws. Here again, if either country
decides not to participate in a measure, the Council will be able to
vote by QMV to end its involvement in Schengen legislation to
guarantee the "practical operability of the various parts of the
Schengen acquis."

.. AND DENMARK
--------------


14. The existing protocol relating to the position of Denmark in
JHA matters will also be amended. The current Danish "opt-out" will
be extended to cover the areas of police cooperation and judicial
cooperation in criminal matters. The new treaty adds a whole new
annex onto the Danish protocol. This provides that, in the future,
Denmark can give up its full opt-out, and instead have the same
power to "opt-in" as the UK and Ireland. The Danish government has
the freedom to decide when, and if, this change should take place,
in accordance with its constitutional requirements.

COMMENT
--------------


15. The requirement for unanimity proved to be a major obstacle to
the rapid adoption of legal instruments for the creation of a common
area of freedom, security and justice.
But the new rules carry the risk of a fragmentation of EU law, e.g.,
through the implementation of enhanced cooperation provisions and
the "opt-out" for certain Member States concerning specific issues.

MURRAY