THE FUTURE OF EU DECISION MAKING ON POLICE AND

C O N F I D E N T I A L USEU BRUSSELS 000597


NOFORN

STATE FOR INL, EUR, INL/PC, INL/AAE, EUR/ERA, L/LEI;
JUSTICE FOR CRIMINAL DIVISION, OFFICE OF INTERNATIONAL
AFFAIRS;
HOMELAND SECURITY FOR OFFICES OF POLICY AND INTERNATIONAL
AFFAIRS

E.O. 12958: DECL: 02/13/2019
TAGS: PREL PGOV PTER KCRM PTER EON
SUBJECT: THE FUTURE OF EU DECISION MAKING ON POLICE AND
JUDICIAL COOPERATION -- WITH OR WITHOUT THE TREATY OF LISBON

REF: 08 BRUSSELS 1590 (NOTAL)

Classified By: INTERNATIONAL NARCOTICS AND LAW ENFORCEMENT
COUNSELOR JAMES P. MCANULTY FOR REASONS 1.4 B AND D

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SUMMARY
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1. (C/NF) With or without the Lisbon Treaty, we anticipate
that major Treaty provisions affecting police and judicial
cooperation in criminal matters will ultimately find their
way into the EU decision-making and institutional frameworks.
The Treaty's fate will determine how fast these changes make
their way into the EU "acquis" The Lisbon Treaty would have
far-ranging effects on decision-making on police and judicial
cooperation in criminal matters. The Treaty envisions
instituting qualified majority voting (QMV) as the norm for
decision-making in this area to speed decision-making within
the Council of Ministers; however, the Treaty also accords
"co-decision" authority to the European Parliament (EP),
which could offset gains in efficiency or speed. The Treaty
would also give national parliaments the ability to slow down
approval of legislation through a system of "emergency
brakes." The United Kingdom (UK) and Ireland, and to a
lesser extent Denmark and Poland, will enjoy significant
"opt-out" and "opt-in" powers, which could produce an
ever-changing patchwork of EU legislation on criminal justice
and police cooperation.


2. (C/NF) Given the far-ranging impact of Treaty provisions
on decision-making for legislation and policies on judicial
and police cooperation in criminal matters, U.S. policy
makers will want to continue pursuing various initiatives
with the EU to timely conclusion. Prompt ratification of the
U.S.-EU mutual legal assistance and extradition treaties and
establishment of a negotiating mandate for a binding
international agreement on data privacy principles will be
critical to locking in innovative measures favorable to U.S.
and transatlantic national security, counter-terrorism, and
law enforcement interests. A greater EP role in JHA
decision-making will place a premium on more frequent
diplomatic outreach with political groupings. END SUMMARY.

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MAJOR IMPACT ON POLICE AND JUDICIAL COOPERATION
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3. (C/NF) Irish voters rejected the Lisbon Treaty in June

2008. A new referendum to be held later this year will
likely decide the Treaty's fate, although a few other Member
States must still complete their ratification procedures
(Reftel). The Treaty would retain many institutional and
decision-making changes that the Constitutional Treaty for
the EU -- defeated by referendum in France and Holland in
2005 -- provided on justice and police cooperation in
criminal matters. These provisions on Justice, Freedom, and
Security (JLS) arguably represent the most important
procedural and substantive changes of any area under the
Treaty and merit close attention for their impact on
transatlantic cooperation on criminal matters.

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MERGING OF THE FIRST AND SECOND PILLARS
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4. (U) Currently, the legal framework established by the 1997
Treaty of Amsterdam separates issues in the Justice, Freedom,
and Security (JLS) area (also known as Justice and Home
Affairs -- JHA),among two different institutional and
procedural "pillars." Immigration, asylum, visa, and civil
justice issues fall under the first pillar as do other
community-wide issues, including trade and commerce, while
justice and police cooperation on criminal matters falls
under the third pillar. The second pillar, encompassing
Common Foreign and Security Policy issues, will retain unique
decision-making procedures. Under the current system,
adoption of community-wide decisions affecting the third
pillar requires inter-governmental consensus, or unanimity,
among all 27 Member States within the Council of Ministers --
a threshold often difficult to achieve. Originally, the
requirement for unanimity preserved individual Member State
prerogatives in areas considered matters of national
sovereignty, particularly enforcement of criminal laws.
Member States gradually ceded aspects of their sovereignty to
the EU by adopting common policies, procedures, and
beneficial practices related to mutual recognition of court
decisions (i.e., introduction of the European Arrest Warrant
in place of extradition) and sharing of law enforcement
information.


5. (U) With some exceptions, the Lisbon Treaty merges the
existing first and third pillars by adopting qualified
majority voting (QMV) as the "ordinary procedure" or norm for
making decisions in the Council of Ministers. Thus, the
Council of Ministers, meeting in one of its nine
configurations of Cabinet Ministers from specific sectors --
in this case, Interior and Justice Ministers -- will decide
on police and criminal justice cooperation by QMV in place of
unanimity. QMV, also known as "double majority voting," will
ultimately require approval by 55-percent of the Member
States (i.e., 15 of 27 the current Member States)
representing at least 65-percent of the EU's population. To
ensure that the most populous Member States acting alone
cannot block proposals, at least four Member States must vote
against a measure for it to be defeated.

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QUALIFIED MAJORITY VOTING
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6. (C/NF) Treaty supporters predict that use of QMV will
produce higher quality legislation. Supporters of
legislative proposals will be able to prepare such
legislation without having to water down the proposals to
gain the support of individual Member States threatening to
veto such proposals. In theory, proposals will not suffer
from the least-common-denominator approach that often now
results from decision-making on JLS issues. Moreover, the
merging of the two pillars could reduce some artificial
distinctions currently erected by Member States among border
protection, asylum, migration, counter-terrorism, and
transnational crime issues. This process of reducing
cross-jurisdictional barriers will take some time, as
existing distinctions codified in community law will remain
until modified.


7. (U) Complicating even further the decision-making process,
the Treaty contains a transitional provision for QMV as a
concession to Poland for its assent to the draft Treaty. The
transitional provision preserves current QMV requirements for
most community-wide issues from the 2001 Nice Treaty, which
requires approval beyond a simple majority (i.e., 50 percent
of the votes plus one) -- taking into account demographic
weights assigned to Member States. Such weights range from a
maximum of 29 votes for the largest Member States to a
minimum of three votes for the smallest ones.. This
transitional provision will remain in force until at least
2014 and possibly as late as 2017. Under it, the Council
must re-examine legislative proposals to try to overcome
minority objections, if either one-third of the Member
States, or Member States representing 25 percent of the EU
population, oppose them. During this transition, Member
States will not be able to make rapid, dramatic changes in EU
legislation on police and judicial cooperation, thereby
allowing for gradual adjustment by Member States to the new
distribution of powers within the EU and its institutions.


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ENHANCED COOPERATION
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8. (C/NF) The Lisbon Treaty also provides for possible
"enhanced cooperation" among Member States for implementation
of measures on specific types of police cooperation,
including operational cooperation among law enforcement
entities, and establishment of a European Public Prosecutor
(EPP). To date, Member States demonstrated considerable
reluctance to use this procedure under the current legal
framework and occasionally worked outside EU institutions to
achieve desired results. Initial establishment of the
Schengen System and negotiation of the Pruem Treaty
constitute prime examples of such maneuvers. In the case of
Pruem, Germany and several Member States agreed to shre DNA,
fingerprints, and vehicle registration data from their
national databases on a "hit / no hit" basis, as well as
underlying information from such matches via later mutual
legal assistance requests. Under the German Presidency in
2007, the Council agreed in principle to incorporate Pruem
Treaty provisions within the EU legal framework, except for
more controversial, forward-leaning provisions on
cross-border responses by police forces in emergencies and
use of air marshals.


9. (U) Lisbon Treaty drafters revised provisions on enhanced
cooperation to encourage use of such decision-making measures
in place of going outside the EU's institutional and legal
framework. While the Treaty will continue to emphasize
inter-governmental consensus (unanimity) as the desired basis
for making decisions, it will allow for use of enhanced
cooperation on certain JLS initiatives as a decision-making
procedure of last resort. Under the new Treaty, if unanimity
does not exist on proposals for establishing an EPP or on
certain types of police cooperation, including operational
cooperation among law enforcement entities, the Council of
Ministers may refer the measure to the Council of the
European Union (composed of heads of state from all 27 Member
States) to try to reach consensus within four months. If
consensus results, the heads of state will refer the proposal
back to the Council of Ministers for adoption via the
ordinary legislative process (i.e., QMV and co-decision with
the EP.) If no consensus emerges among heads of state, and
if at least one-third of the Member States (i.e., nine or
more of the current 27) supports the proposal, they may
obtain authorization from the Council of Ministers via QMV to
adopt and implement such legislation among themselves.


10. (C/NF) Treaty supporters argue that such provisions on
enhanced cooperation will make it more likely that Member
States will resort to such cooperation rather than going
outside the Treaty's institutional framework. Nonetheless,
such provisions retain much of their earlier complexity,
which may make Member States reluctant to use them. In any
case, use of enhanced cooperation carries the risk of
producing an even greater patchwork than currently exists of
differing legal measures on justice and police cooperation on
criminal matters. Development of more complicated and uneven
legal systems would require Member States and non-EU states
alike to make even greater efforts to track differences among
legal frameworks applicable to different Member States. This
development would also exacerbate U.S. preference to deal
bilaterally with individual Member States on certain types of
police and judicial cooperation and further undermine ability
of fledgling EU institutions, such as the European Judicial
Coordination Unit (EUROJUST) and European Police Office
(EUROPOL),to generate and sustain cross-border cooperation.

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OPT-IN PROVISIONS
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11. (C/NF) The current legal framework has permitted a few
Member States, specifically the UK, Ireland, and Denmark, to
"opt out" of individual provisions involving police and
judicial cooperation. Under the Lisbon Treaty, as a
trade-off for agreeing to provisions permitting QMV and
co-decision with the EP, the UK and Ireland may choose to
"opt-in" selectively to provisions they favor. This
concession, in part, reflects the differing legal systems and
traditions of these two Member States, with common law legal
systems in contrast to the civil law legal systems of much of
continental Europe. The UK and Ireland may decide that they
do not wish to participate in particular measures proposed
for adoption via enhanced cooperation. Later, if they deem
the final result unobjectionable, they may decide to opt in.
By that point, however, they may have lost their ability to
influence the content of such measures. In any case, under
the new Treaty, JLS measures will not automatically apply to
all Member States.


12. (C/NF) The new Treaty requires that all Member States
abide by measures to which they had agreed before the
Treaty's entering into force. However, amending existing
legislation could produce interesting scenarios. For
example, the UK or Ireland may decide to opt out of such
amendments, even though they had previously adopted the
measures under revision. Nevertheless, in such instances, if
other Member States decide by QMV that their withdrawal would
"affect the effectiveness of the measure and make it
inoperable," they could force the UK or Ireland to withdraw
from the entire measure and not just the amended portion.
Again, provisions for opting in or opting out of individual
measures or withdrawing from amendments to existing
legislation have the potential to exacerbate the already
uneven patchwork of differing legal frameworks within the EU.
Again, such actions could complicate not only internal EU
law enforcement relationships but also dealings with third
countries.

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PULLING THE EMERGENCY BRAKE
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13. (C/NF) Under the new Treaty, a Member State may object to
a specific JLS measure, if it deems such a measure would
affect fundamental aspects of its criminal justice system.
Such objections would occur through a process that
complements the enhanced cooperation procedure. In case of
objection, the Member State may refer the matter to the heads
of state within the Council of the EU, suspending the
measure's consideration for four months. If the heads of
state reach consensus within four months, they may refer the
measure back to the Council of Ministers for resumption of
the ordinary approval process (i.e. approval by QMV and
co-decision with the EP). If, on the other hand, heads of
state fail to reach consensus within this period, then the
proposal fails to win approval via the ordinary
decision-making process. Nevertheless, in such a case, if at
least one-third of the Member States still favors the
proposal, then this group of nine or more may adopt the
measure under enhanced cooperation. Proponents of the
"emergency brake" provision predict Member States will use
this measure judiciously and only as a last resort, because
of the political capital they would expend in employing it.
In most cases, the threat of using this emergency brake would
likely allow Member States to gain concessions regarding
their concerns. Views differ on whether the UK and Ireland
would choose to pull this emergency brake, as they already
have the right to opt in to legislation they favor. Indeed,
pulling the emergency break after their employing this opt in
procedure would occur in only rare cases, if at all.

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INCREASED POWERS FOR MEMBERS OF THE EUROPEAN PARLIAMENT
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14. (C/NF) Under the current treaty framework, the European
Commission and individual Member States have the power to
initiate legislation, and the Council need only consult with
the EP regarding such proposals. Currently, the EP provides
non-binding observations on legislation to the Commission as
part of such consultations. While Commission officials
sometimes modified proposed legislation to address EP
concerns, for years they more often ignored or paid lip
service to these concerns when amending and approving draft
Framework Decisions.


15. C/NF) Accordingly, the EP co-decision authority on JLS
legislation constitutes one of the Lisbon Treaty's most
significant provisions. A UK expert at a think-tank event in
Brussels described this change as creating essentially a
bicameral legislature involving both the Council and the EP,
with both bodies deciding on JLS legislation. As a result,
the EP will experience an overall increase in power, with EP
Members (MEPs) having the ability to offer amendments to
proposed JLS legislation, rather than serving merely as a
consultative or advisory body. Proponents of EP co-decision
authority claim this change will increase transparency and
accountability for legislation affecting judicial and police
cooperation in criminal matters. As MEPs often assert, their
institution is the only EU body whose members are directly
elected by EU citizens.


16. (C/NF) Some critics worry that MEPs will place too much
emphasis on protection of civil liberties and privacy rights
of individuals at the expense of promoting law enforcement
cooperation to enhance common security. Several high-profile
MEPs, particularly those from the influential Human Rights,
Justice, and Home Affairs (LIBE) Committee, have strongly
criticized measures to promote transatlantic sharing of law
enforcement information as violating individual privacy
rights and civil liberties. A close Council Secretariat
contact has assured us repeatedly that MEPs will express more
balanced positions after they obtain genuine powers over JLS
legislation. He said moderate views of the larger political
groupings and parties will prevail in votes on JLS
legislation and generally mirror those of Member State
governments. Nonetheless, given extreme positions sometimes
expressed publicly by current MEPs, such predictions may stem
more from wishful thinking than objective analysis.


17. (C/NF) In recent months, in anticipation of Lisbon Treaty
ratification, Commission officials have consulted more
closely with MEPs, particularly on sensitive measures
involving data privacy and sharing of law enforcement
information. Indeed, Commission counterparts have argued
repeatedly that, because of the anticipated greater EP role,
they must wait for Treaty entry into force before setting a
formal mandate for negotiating a binding international
agreement with the U.S. on data privacy. With or without
Lisbon, we do not see EU officials back-tracking on closer
consultations, amounting to de facto co-decision with the EP.


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GREATER POWERS FOR NATIONAL PARLIAMENTS AS WELL
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18. (C/NF) The Treaty also provides for systematic
consultations with national parliaments of Member States on
adhering to the "subsidiarity" principle, which provides that
the EU may only legislate where such action can be done
better at the community level than at national or local
levels. National parliaments may voice objections to
proposed legislation, if they view such measures as violating
this principle. If at least one-third of national
legislatures (i.e., nine or more of the national legislatures
in the 27 Member States) object, then the proposal must go
back to the Commission for additional review to try to
address objections. If a majority of the legislatures
object, then the Commission must consult with Member States
and the EP for their views on the subsidiarity principle.
Although not exercising a formal veto, national parliaments
will have the power to seek additional review or slow down
approval of proposed legislation. Reviews could occur within
the inter-parliamentary body (known as COSAC) that currently
meets twice yearly, but would probably have to meet more
frequently under the Treaty. An EP professional staff member
opined at a think-tank event that such consultations will
enhance transparency and democratic legitimacy for JLS
legislation. She compared such safeguards to use of yellow
and red cards in professional soccer matches, which referees
use to indicate less or more serious rule infractions. Under
this system of parliamentary scrutiny, elected
representatives at the national level can influence the
content of proposed legislation. Additionally, each house of
each national parliament may refer a measure to the European
Court of Justice (ECJ) for any perceived violations of the
subsidiarity principle, thereby providing additional
safeguards.

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INITIATORS OF LEGISLATIVE PROPOSALS
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19. (C/NF) Under current rules, either the European
Commission or individual Member States may initiate JLS
legislative proposals. In practice, the Commission produces
most proposals, known as Framework Decisions, often at the
Council's direction, but some Member States also initiate
proposals. The new Treaty will change these rules slightly
by allowing either the Commission or one-quarter of the
Member States (i.e., seven or more of the current 27) to
propose legislation. This change will encourage Member
States wishing to table proposals to seek support of
like-minded states before presenting it to the Council.
Nonetheless, this situation will not be much different from
the current one, which already places a high premium on
consensus-building.

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LAWS WITH DIRECT LEGAL EFFECT
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20. (C/NF) Under the existing legal framework, legislation on
criminal police and justice cooperation does not have direct
legal effect. Instead, Member States must enact national
legislation to implement the provisions of a Framework
Decision either after Council approval or, in some cases,
beforehand. Moreover, Commission officials cannot initiate
infringement proceedings against Member States that fail to
implement approved Framework Decisions, although they can
undertake evaluations of Member State performance. Critics
insist such limitations have hindered effective
implementation of JLS legislation. Currently, implementation
is uneven at best among Member States, with wide variations
in the quality of enforcement. In some instances,
enforcement of laws against corruption and violations of data
privacy leave much to be desired. Moreover, the ECJ now has
limited jurisdiction over third pillar issues, and
individuals generally do not have legal standing to enforce
their rights in this area.


21. (U) The Lisbon Treaty stipulates that JLS legislation
will have direct legal effect and that the Commission will
have the power to enforce implementation of JLS laws through
infringement proceedings against individual Member States.
Such infringement proceedings could result in assessment of
substantial fines, as has occurred within the private sector
under enforcement of Community-wide provisions on competition
and trade. Treaty supporters insist this power will
substantially strengthen the Commission's ability to promote
efficient enactment of JLS provisions. Even terminology for
legal instruments will change, as Decisions become
Regulations and Framework Decisions become Directives.
Designations of already adopted instruments, however, will
remain the same, unless such instruments undergo amendment or
repeal.

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EXPANDED ECJ JURISDICTION
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22. (C/NF) Under the Treaty, the ECJ will enjoy greater
jurisdiction over JLS legislation. EU citizens will have the
right to appeal administrative and judicial decisions in JLS
matters before the courts. Preliminary references will be
available from any national tribunal or court, except that
the ECJ will not have jurisdiction over operations conducted
by police and law enforcement services or the exercise of
Member State responsibilities for maintaining law and order
and safeguarding internal security. We anticipate that
expanded ECJ authority will have a major impact on U.S.-EU
law enforcement cooperation, especially on implementation of
procedures and safeguards.

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LEGAL PERSONALITY FOR THE EU
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23. (C/NF) The EU will also confirm and assert its legal
personality under the new Treaty, as the EU will formally be
able to enter directly into agreements with third nations in
areas under its competence, as the EU has already done with
the U.S. on matters such as mutual legal assistance and
extradition. In some cases, the EU will have exclusive
competence, while, in other areas, the Member States will
continue to wield exclusive jurisdiction. In other cases,
mixed competence will result. Interestingly, the EU may
decide under the Treaty of Lisbon to negotiate certain
agreements with non-EU countries under Common Foreign and
Security Policy (CFSP),which involves a separate set of
decision-making rules. The EU recently negotiated a
Passenger Name Record (PNR) Agreement with Australia under
the second pillar, rather than under the first or third
pillars as with earlier agreements of this type. The EP will
not enjoy co-decision powers under CFSP.

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WHAT ABOUT PLAN C?
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24. (C/NF) The Lisbon Treaty already represents the
fall-back, or Plan B, to the failed Constitutional Treaty of

2005. Should ratification fail, EU counterparts will enter
into another period of reflection likely to last years, given
that EU officials have no real Plan C. Should this happen,
then EU officials may find themselves packaging certain JLS
provisions from the Treaty into smaller, more acceptable
parts that promote piecemeal, de-facto implementation over
time. With or without Lisbon, we will need to confront the
impact of its provisions, particularly on QMV and co-decision
for the EP.

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RECOMMENDATIONS FOR U.S. POLICY MAKERS
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25. (C/NF) If ratified, and before the Lisbon Treaty enters
into force, U.S. policy makers should continue pressing for
final ratification -- by Belgium and Greece -- of the U.S.-EU
mutual legal assistance and extradition agreements as well as
establishment by the EU of a negotiating mandate for a
binding international agreement on data protection principles
identified and defined by the U.S.-EU High Level Contact
Group. After entry into force, approval of agreements may
become more problematic because of the EP co-decision role.
U.S. officials may wish to explore flexibility that may exist
for negotiating agreements under the CFSP process, instead of
under the Treaty's ordinary procedure for JLS issues.
Finally, the Mission and U.S. Embassies in Member States will
also want to chart strategies for expanded outreach with
moderate political groupings and parties of the new EP (to be
elected in June) and national parliaments to exchange views
on issues, policies, and proposed legislation on police and
judicial cooperation in criminal matters.

MURRAY