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R 121432Z JUN 08
FM USEU BRUSSELS
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INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
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RUCNDT/USMISSION USUN NEW YORK
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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