Memorandum by DG Justice, Freedom and
Security, European Commission
The move to qualified majority voting and co-decision
in areas of criminal law and policing
The move from unanimity to qualified majority
voting and co-decision will provide a higher degree of efficiency
and legal certainty and will improve accountability and democratic
control as the European Parliament becomes more directly involved.
Qualified majority voting and co-decision will
be extended to legislation concerning police and judicial cooperation
in criminal matters (except for operational police cooperation
and the European Prosecutor).
The emergency brake and flexibility procedures
in criminal law and policing
If a Member State considers that a draft directive
would affect fundamental aspects of its criminal justice system,
it may request that the draft directive be referred to the European
Council, in which case the legislative procedure is suspended.
After discussion, and in the case of a consensus, the European
Council shall—within four months of the suspension—refer
the draft back to the Council, thus terminating the suspension
of the legislative procedure. Within the same time-frame, if the
disagreement persists, enhanced cooperation may be established
if at least nine Member States wish to do so.
Provisions on Eurojust and the creation of a European
Public Prosecutor
According to the Treaty, Eurojust's mission
shall be to support and strengthen coordination and cooperation
between national investigating and prosecuting authorities in
relation to serious crime affecting two or more Member States
or requiring a prosecution on common bases, on the basis of operations
conducted and information supplied by the Member States' authorities
and by Europol. The European Parliament and the Council shall
determine Eurojust's structure, operation, field of action and
tasks.
The Treaty also allows for the establishment,
from Eurojust, of a European Public Prosecutor, responsible for
investigating, prosecuting and bringing to judgment perpetrators
of, and accomplices in, criminal offences against the Union's
financial interests. This would require a regulation adopted by
the Council acting unanimously with the consent of the European
Parliament. Its powers may also include serious crime with a cross-border
dimension if the European Council so decides by unanimity.
The special arrangements for family law measures
and the family law passerelle
Measures concerning family law will not be subject
to qualified majority voting. This is an exception from other
judicial cooperation in civil matters with cross-border implications.
Nevertheless, a passerelle provision states that, by unanimity
and after consultation with the European Parliament, the Council
may decide to apply the ordinary legislative procedure to those
measures. However, the proposal for such a decision has to be
notified to national parliaments; if a national Parliament makes
known its opposition to this draft decision within six months
of the notification, the decision shall not be adopted.
The operation of the opt-ins contained in the
Schengen Protocol and the Protocol on the position of the UK and
IRL in respect of the area of Freedom, Security and Justice
Under the new Protocol on the position of the
United Kingdom and Ireland, the UK will maintain and even extend
its op-outs. In particular, the UK's exemptions are extended to
judicial cooperation in criminal matters and police cooperation,
whereas currently they exist only for asylum, immigration and
civil law (Title IV of the EC Treaty).
At the moment, once the UK has opted into a
measure, it must also accept subsequent amendments. Under the
new Treaty it seems that the UK may decide not to opt into a subsequent
amendment. However, the Council may decide that the UK no longer
participates in the original measure if refusing the amendment
makes that measure "inoperable".
The Council may also decide on financial consequences
if the UK leaves a cooperation measure in which it has participated
before. This should not be seen as a penalty against the UK but
as a measure to deal with the "necessary and unavoidable"
financial consequences of the decision taken by the UK.
If the UK leaves an existing cooperation, the
new provisions guarantee it the full right to accept the same
measure later at any subsequent moment.
The new Treaty will amend the Schengen Protocol
to make provision for a new procedure for the participation of
the United Kingdom and Ireland in measures building on the Schengen
acquis ("Schengen building measures").
Under the Treaties as they now stand, the United
Kingdom and Ireland, although as a general principle they do not
take part in the Schengen system, have been authorised by the
Council to join in sections of the Schengen acquis provided
that they take part automatically in any subsequent measure building
on the system in that area. The amended Protocol allows them to
decide not to take part in such building measures, but in that
event a Council decision may exclude them from the Schengen acquis
to the extent judged necessary on the basis of the criteria set
out in the Protocol. Failing a decision by the Council or by the
European Council, the decision will be taken by the Commission.
Protocol (no 10) on transitional provisions
A transitional period of five years after the
entry into force of the Lisbon Treaty applies in the field of
police cooperation and judicial cooperation in criminal matters.
During that transition period, the powers of the European Court
of Justice and of the Commission, as guardian of the treaties,
remain limited (see Article 10 of the Protocol on transitional
provisions) as far as the pre-existing third pillar acquis
is concerned and so long as such acquis is not amended.
By the Declaration to Article 10 of the Protocol
on transitional provisions, the Commission, the European Parliament
and the Council are invited to seek to adopt, where appropriate,
legal acts amending or replacing the acts of the current third
pillar acquis.
The jurisdiction of the European Court of Justice
in relation to the FSJ area
Today we have an exceptional situation in which
the Court of Justice does not have jurisdiction for all areas
of EU legislation in the area of freedom, security and justice.
The Treaty of Lisbon enables the Court to become
fully competent eventually in the area of freedom, security and
justice—including police and judicial cooperation, subject
to one limitation: the validity and proportionality of police
operations and measures taken by Member States to maintain law
and order or safeguard internal security remain outside the Court's
jurisdiction.
In the area of police and judicial cooperation
and regarding the legal acts adopted before the entry into force
of the Treaty of Lisbon, the competence of the Court of Justice
will be subject to a transitional period of up to five years after
the Treaty's entry into force. After five years the UK must decide
whether to accept the Court's jurisdiction or opt-out completely
from the pre-existing third Pillar acquis.
The application of the Charter of Fundamental
Rights in the FSJ area
The Treaty will make the Charter legally binding.
Its provisions will apply to acts of the institutions, bodies,
offices and agencies of the Union and to Member States when implementing
Union law, subject to particular provisions regarding Poland and
the United Kingdom A protocol stipulates that the Charter does
not extend the powers of the Court of Justice of the European
Union, or any court or tribunal of Poland or of the United Kingdom,
to find that the laws, regulations or administrative provisions,
practices or action of Poland or of the United Kingdom are inconsistent
with the fundamental rights, freedoms and principles that it reaffirms.
The protocol stresses that nothing in Title IV of the Charter
creates justiciable rights applicable to Poland or the United
Kingdom except in so far as Poland or the United Kingdom has provided
for such rights in its national law. Furthermore, in the case
of a provision of the Charter that refers to national laws and
practices, it shall only apply to Poland or the United Kingdom
to the extent that the rights or principles that it contains are
recognised in the law or practices of Poland or of the United
Kingdom).
The EU will also be required to accede to the
European Convention on Human Rights, subject to a unanimous agreement
of the Council and ratification, by all Member States, of the
Council's act of concluding the accession treaty.
The effect of the general passerelle provision
(Article 33) in the area of FSJ
The general passerelle provision (now,
article 48 (7)) will allow the European Council to decide by unanimous
vote that, in future, where the Treaty on the Functioning of the
European Union or Title V of the Treaty on European Union provides
for the Council to act by unanimity in a given area or case, the
Council may decide by qualified majority voting or by the ordinary
legislative procedure (co-decision). The Treaty also provides
that any national parliament may block the European Council's
decision and prevent the implementation of the passerelle
provision.
In the area of freedom, security and justice,
this concerns operational police cooperation and the European
Public Prosecutor.
17 January 2008
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