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 -------------- ¶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 BRUSSELS 00000892 004 OF 004 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