Category: 1. EU and MS legal Order and Institutional framework

Among the most promising, albeit less debated consequences linked to the entry into force of the Treaty of Lisbon, is the new role played by the European Parliament in relation to the conclusions of international agreements in the field of police and judicial cooperation in criminal matters.

Until now the European Parliament has undeniably been a mere observer. Indeed, since the entry into force of the Treaty of Amsterdam in 1999, the European Council has never consulted the European Parliament on the basis of Articles 24 and 38 of the Treaty on the European Union which compels such a consultation only when strategic aspects for the Union are involved. By contrast, with the entry into force of the Treaty of Lisbon, the European Parliament shall become a decisive actor given that international agreements will be subject to approval by Parliament.

It may be considered that the European Parliament did not play an enhanced role in the agreements recently concluded on 28 October with the United States in the field of mutual recognition and judicial cooperation in criminal matters. However, the Parliament will, due to the Treaty of Lisbon, be involved in the conclusion of agreements such as Passenger Name Records (PNR) concerning the exchange of passengers’ data, the access to financial data handled by the inter-banking transfer system SWIFT as well as the exchange of data linked to security checks when dealing with the extension of the United States Visa Waiver Programme to European citizens belonging to countries which are not yet part of this programme.

This working programme will then be completed by the opening of the negotiations on the future transatlantic agreement in the field of data protection which will provide the framework for these complex relations. 

The pressure on the European Parliament has already started with the approval of a Ministerial Declaration in Washington on 28 October which already defines the objectives that need to be reached in this field.  The same declaration has been re-launched by the Conclusions of the European Union/United States Summit which took place on 3 November and will be also be part of the key themes of the Stockholm Programme which the European Council should adopt on 10 December defining the priorities of the area of freedom, security and justice for the next five years.

Will the European Parliament be capable of getting back in the running and engage, with an original dialogue, with the European Council, the European Commission and the Administration of the United States?

It is still too early to answer; however there are clear signs pointing towards a strong willingness of the Strasbourg Assembly to adequately carry out its monitoring and propulsive role acknowledged by the Treaty, rather than being a simple observer.

The proof is that in tandem with the Inter-ministerial Troika, a delegation of the parliamentary Committee on Civil Liberties met high representatives of the United States Administration as well as members of the Congress to have first hand experience of the above-mentioned issues as well as of future agreements.

The initiative has been taken into serious account by the US Administration to the extent that on the 6 November Ms. Janet Napolitano, the third United States Secretary of Homeland Security, attended a hearing in Brussels held by the LIBE Committee to present the results and perspectives of the first year of the Obama Administration in relation to this delicate domain and underwent a barrage of questions that the MEPs had collated during the previous weeks.

Evidently this is not yet an original form of ‘diplomacy’ but it is getting closer to it. Within the next few months it will be possible to see the extent to which all this is just rhetoric or on the contrary -as has happened in the past- a clear position of the European Parliament will paradoxically reinforce both the negotiating role of the European Union and support a greater openness towards European needs not just by the US Administration but also by Congress.

 Emilio De Capitani

Ten years after the first European Council in Tampere it is interesting to read again those declarations with which Heads of State and Government defined the ambitions of the European Union in this area. 

“[…]The enjoyment of freedom requires a genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own. Criminals must find no ways of exploiting differences in the judicial systems of Member States. Judgements and decisions should be respected and enforced throughout the Union, while safeguarding the basic legal certainty of people and economic operators. Better compatibility and more convergence between the legal systems of Member States must be achieved.

People have the right to expect the Union to address the threat to their freedom and legal rights posed by serious crime. To counter these threats a common effort is needed to prevent and fight crime and criminal organisations throughout the Union. The joint mobilisation of police and judicial resources is needed to guarantee that there is no hiding place for criminals or the proceeds of crime within the Union.

The area of freedom, security and justice should be based on the principles of transparency and democratic control. We must develop an open dialogue with civil society on the aims and principles of this area in order to strengthen citizens’ acceptance and support. In order to maintain confidence in authorities, common standards on the integrity of authorities should be developed[…]”. 

There is no doubt that these aspirations are a long way from being implemented, but it would not be fair to underestimate the progress, although not equal, made by the European Union in a relatively short timeframe. But what is the most important aspect is that despite the obvious difficulties, the European Union has reinstated its commitment through the years and that Member States are progressively deleting those reserves that characterised the starting process of the ALSJ. Further proof of this statement is art. 68 of the Treaty on the Functioning of the European Union which, depending on the Irish referendum, could enter into force together with the European Charter on Fundamental Rights in January. 

It is interesting to point out that if, during the first phase of the ALSJ, the greatest worry concerns the creation of a more trustful frame among Member States by developing mutual trust, building areas and instruments to work together during the phase which starts with the Treaty of Lisbon, European policies put individual rights at the centre. 

Against such a vast, complex and with uncertain borders domains, this rubric shall make a selection which will be inevitably arbitrary but that should at least provide information on what the Institutions considered relevant or controversial.

Sometimes information, documents will be accompanied by brief notes or abstracts from press releases or articles that have included a specific news.

EDC