Select Committee on European Union Twenty-Second Report

CHAPTER 7: Police Cooperation and Criminal Justice—A Special Case

133.  As we have mentioned (paragraph 16), in the third pillar—the field of police and judicial cooperation in criminal matters, under Title VI TEU—both the Commission and the Member States have the right of initiative. No doubt there were many motives for the introduction of a shared right of initiative in this field. Professor Peers thought that issues of national sovereignty and divergences between legal systems and the concepts underlying their criminal laws were probably influential. This was confirmed by Catherine Day who noted that working in the third pillar was very sensitive, (Q 341) and by David Harley who recognised that judicial and police matters traditionally lie at the heart of national governments' prerogatives. (Q 403)

EXERCISE OF THE RIGHT OF INITIATIVE

134.  Professor Peers gave us some statistics for the period following the coming into force of the Treaty of Amsterdam in 1999 after which the Commission shared the right of initiative with the Member States. (QQ 47-48)

TABLE 2

Initiative for legislation adopted under Title VI TEU

(Police and Judicial Cooperation in Criminal matters) since 1999

	Number proposed by Commission	Number proposed by Member States	Total
Framework Decisions	9	12	21
Decisions	11	16	27
Conventions (including protocols)	0	6	6

CONCURRENT PROPOSALS

135.  It is possible for Member States to forestall or sideline a Commission proposal by making one of their own. If a proposal has come forward from a Member State, the Commission is reluctant to make a competing proposal, Professor Peers told us. He referred to the case of the amendments to the Decision establishing Eurojust[48] which were put forward by Member States in January 2008 even though the Commission had previously announced that it would bring forward a proposal in July 2008. In the case of the Prüm Convention, an agreement on exchange of information among law enforcement bodies made by seven EU countries, the Commission made a proposal for an EU Framework Decision on one aspect of the Prüm Treaty but the Council ignored it in favour of a proposal, made by 13 Member States, to incorporate the whole of the Treaty into EU law. (Q 49)

INDIVIDUAL MEMBER STATES

136.  The use made by individual Member States of their right of initiative attracted criticism from a number of our witnesses. Perhaps unsurprisingly, the Commission saw difficulties with the Member States' right of initiative. Indeed, Catherine Day's view, expressed bluntly, was that there had been "some fairly badly prepared proposals", as well as proposals that did not take account of the need for consensus among the members of the Council. (Q 341)

137.  Professor Rasmussen also considered that the experience of Member State initiatives was "not necessarily positive". While acknowledging that there were good and bad examples, she thought there had been "a tendency for certain Member States to present proposals that were dominated very much by national interests and perhaps did not always take the interest of the Community as a whole into account". (Q 26) Vijay Rangarajan agreed that some Member States' initiatives had wasted time and political effort. He noted that there were cases of Member States, particularly when holding the Presidency, bringing forward proposals largely prompted by national political events. (Q 311) The Law Society of England and Wales referred to specific examples where such initiatives had failed to make progress. (p 58) The Law Society and the Bar Council also saw some problems with the shared right of initiative, in terms of the coherence of legislation and coordination of policy generally. (Q 244) In the cases referred to by the Law Society, the Member State initiatives were inconsistent with the European Council's programme or sought to anticipate a proposal's place in the programme. The Presidency proposals jumped the queue. (p 58)

GROUPS OF MEMBER STATES

138.  Recently, Professor Peers told us, it has become more common for proposals to be submitted by groups of Member States. The proposal to amend the Decision establishing Eurojust, for example, was made by 15 Member States. (Q 48) Vijay Rangarajan thought that initiatives with the support of a number of countries tended to be better prepared as they had had to undergo the testing process of negotiation among the sponsors. (Q 311) Catherine Day and Julia Bateman (Head of the Law Society's Brussels office) took the same view. (QQ 347, 244) Even so, there are concerns that decisions taken by a small group may pre-empt consideration of options that would otherwise have been considered. When we considered the meetings of the "G6" group of Ministers of the Interior, we concluded that they should inform other Member States and the Commission of their discussions fully and in good time for them to be carefully considered, before making formal proposals for negotiation by all Member States in the appropriate EU fora.[49]

139.  The Minister for Europe, UKRep officials, the Commission and the Law Society (QQ 444, 311, 341, and p 58) all commented that proposals from Member States rarely included an impact assessment or even (the Law Society mentioned) explanatory notes. In other words, the Member States do not practise what they preach to the Commission.

140.  As we have mentioned (paragraph 17), if the Treaty of Lisbon were to come into force, Member States would retain a right of initiative in the field of police and criminal justice, but a proposal would require the support of at least one-quarter of their number (that is, currently, seven). The Minister thought this a sensible reform. The initial threshold would require "taking the temperature as to whether there is a willingness across a European Union of 27". (Q 441) Professor Peers noted that that number was close to the minimum number of states (nine) that may take advantage of the provision for groups of Member States to adopt decisions under Enhanced Cooperation.[50] There might be some inter-play between the right of initiative and the use of Enhanced Cooperation. (Q 50)

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48   Eurojust is a judicial cooperation unit, based in The Hague. Its role is to promote and facilitate cooperation in the investigation of serious and organised, cross-border, crime. It is composed of one senior magistrate, prosecutor, judge or other legal expert seconded from each Member State. Back

49   After Heiligendamm: doors ajar at Stratford-upon-Avon (5th Report, 2006-07, HL 32). Back

50   See Article 20 TEU, as amended by the Treaty of Lisbon. Under Enhanced Cooperation, fewer than the 27 Member States may be authorised to adopt acts, in exercise of EU competences, binding only on the participating States. Back