41
243 See 11.8 below.
245 See n 189 above.
Overview of the institutional framework
2.5 of chs 9 and 12. 242 For details, see Appendix II.
u-'C,-'" v, Commission v Council [2005] ECR 1-345.
u-JV.J>cU CommissiOtl v Spain [2006] ECR 1-1097.
C-241105 Bot [2006] ECR 1-9627. See 4.9 below.
Cases C-261/08 Zurita Carcia and C-348/08 Choque Cabrera, judgment of22 Oct 2009,
See 3.6.1 below.
UK v Council [2007] ECR 1-11459 and C-137/05 UK v Council [2007] ECR
also C-482/08 UK v Council, pending (opinion of24 June 2010). See 2.2.5.1.3 below.
1_"41/114 R Cap Gemini [2005] ECR I1-257.
as regards external competence and the Schengen acquis, 2.7 below.
u-JVJ""J Commission v Spain (n 201 above); see further 2.4.2 below.
and Brugge (n 182 above). In particular, the double jeopardy rules aim to prevent
prosecutions as a consequence ofexercise offree movement rights (see generally 11.8 below).
u-,cJ,/Vi (n 244 above); see further 2.2.2.1 above. 255 See n 189 above.
OJ C 306.
Treaty of Lisbon
Overview
.institutional framework governing EU JHA law again changed significantly
entry into force ofthe Treaty ofLisbon on 1 December 2009.256
First of
certain measures concerning criminal procedure and policing.?" The result is
a substantial proportion ofthe Schengen Convention and a large number ofthe
secondary Schengen measures integrated into the EU and EC legal orders in 1999
been or would be amended, repealed, or supplemented by EC or EU acts.242
Court ofJustice has ruled on the provisions of the Schengen acquis on a
of occasions, in relation to the double jeopardy rules.r" the adoption of
ibsequent implementing rneasures.?" the integration of the Schengen Secretariat
into the Council.?" the operation of the SIS;246 the freedom to travel rules;"?
on external borders.?" and on the scope ofthe rules concerning the British
to the Schengen acquls.r" A case concerning SIS contracts was settled.F"
Court has not yet determined the legal effect of the Schengen measures,
provision ofthem.F" although it has ruled on the relationship between the
acquis and EU free movement law. 252Also, the Court has ruled that the
tegration ofthe Schengen acquisinto the EC and EU legal order means that the
can no longer be interpreted according to the normal rules ofpublic interlaw,
but rather interpreted taking the EU framework into account.F" On
hand, the historical context ofthe pre-existence ofthe Schengen acquis
factor justifying the Council's decision to apply unusual rules concernadoption
of visas and borders implementing mcasures.P" and the Court
Instance (as it then was) also justified the adoption of unusual measures
cernmg the hiring of Council staffin light ofthe Schengen Protocol.255 With
there appears to be a fundamental inconsistency in the case law as to
the Schengen acquis should be subject to special treatment or not.
Institutional Framework40
this power was spent.P" and this provision was duly repealed by the Treaty
Lisbon.?"
As for the staff of the Schengen Secretariat, the Protocol provided for
Council to adopt arrangements for their integration into the Council's
The Council's decision to this end was unsuccessfully challenged.m
The Council also decided to adopt further measures concerning the management
and financing of contracts relating to the SIS,234 and providing a Secretariat
for the Schengen data supervisory authority.m The latter Decision was
repealed when ajoint secretariat for different third pillar data supervisory
ities was established.?"
The Protocol also set out specific rules for measures, adopted after the entry
force of the Treaty of Amsterdam, which 'build upon' the Schengen acquis.
measures shall be 'subject to the relevant provisions of the treaties'r"? So after
point all Schengen-related measures have had to be regarded as 'regular'
EC law (until the Treaty of Lisbon entered into force) or EU law, with no
rules applying as regards their legal base (and therefore no special rules
decision-making or the Court ofJustice, other than those rules applicable
JHA measures adopted in the same area). However, there are still differences between
measures building upon the Schengen acquis and other measures to be adopted
the EC or EU Treaties, as regards the territorial scope ofthe measures.P"
In practice, nearly all EU measures concerning visas, border controls,
irregular immigration adopted or proposed since 1 May 1999 have built
Schengen acquisP" So have a handful of measures concerning legal nugranons
230 On the separate issue ofthe extension ofthe Schengen acquisto the Member States
the EU later, see 2.2.5.3 below; on the later extension ofthe acquisto Switzerland and Lie'cm'"",
see 2.2.5.4 below. 231 It does not appear in the amended version of
232 Previous Art 7; this was the only provision of the Protocol which provided for the
to act by QMV. This article was repealed by the Treaty of Lisbon, presumably because
was now spent. 233 [1999] OJ L 119; on the case law, see n
2.14 One set of Decisions was applicable from 1999-2003 (Council Decisions 19S19/:322
1999/323, [1999] OJ L 123/49 and 51, repealed as of27 Nov 2003 by Council Decisions
and 2003/836, [2003] OJ L 318/22 and 23), while the other has been applicable since 1999
(Council Decisions 1999/870 and 2000/265, [1999] OJ L 337/41 and [2000] OJ L 85/12;
has been amended by Decisions 2000/664/EC ([2000] OJ L 278/24),2003/171 ([2003]
2007/155 ([2007] OJ L 68/5), 2008/319 ([2008] OJ L 109/30),2008/670 ([2008] OJ L
2009/915 ([2009] OJ L 323/9)). See also Decision 2007/149 ([2007] OJ L 66/19) and the
to the relevant Decision ofthe Schengen Executive Committee ([2000] OJ L 239/444) in
L 179/50, [2008] OJ L 113/21, and [2010] OJ L 14/9.
235 Decision 1999/438 ([1999] OJ L 176/34).
236 Decision 2000/641 ([2000] OJ L 271/1), which replaced Decision 1999/438 as
(Art 6, Decision 2000/641). On third pillar data protection, see further 12.3 and
237 Art 5(1), first sub-paragraph, which was not amended by the Treaty of Lisbon.
despite any failure to allocate the original acquis (see Art 5(2), repealed by the
Despite the repeal of Art 5(2), the general rule in the first sub-paragraph ofArt 5(1)
vent the adoption of any measure relating to the SIS (ie the only parts of the
allocated to a Treaty base) from being adopted using the 'wrong' legal base.
238 See 2.2.5 below. 239 See 2.5 of chs 3, 4, and 7. 240 See 6.2.5.
41
243 See 11.8 below.
245 See n 189 above.
Overview of the institutional framework
2.5 of chs 9 and 12. 242 For details, see Appendix II.
u-'C,-'" v, Commission v Council [2005] ECR 1-345.
u-JV.J>cU CommissiOtl v Spain [2006] ECR 1-1097.
C-241105 Bot [2006] ECR 1-9627. See 4.9 below.
Cases C-261/08 Zurita Carcia and C-348/08 Choque Cabrera, judgment of22 Oct 2009,
See 3.6.1 below.
UK v Council [2007] ECR 1-11459 and C-137/05 UK v Council [2007] ECR
also C-482/08 UK v Council, pending (opinion of24 June 2010). See 2.2.5.1.3 below.
1_"41/114 R Cap Gemini [2005] ECR I1-257.
as regards external competence and the Schengen acquis, 2.7 below.
u-JVJ""J Commission v Spain (n 201 above); see further 2.4.2 below.
and Brugge (n 182 above). In particular, the double jeopardy rules aim to prevent
prosecutions as a consequence ofexercise offree movement rights (see generally 11.8 below).
u-,cJ,/Vi (n 244 above); see further 2.2.2.1 above. 255 See n 189 above.
OJ C 306.
Treaty of Lisbon
Overview
.institutional framework governing EU JHA law again changed significantly
entry into force ofthe Treaty ofLisbon on 1 December 2009.256
First of
certain measures concerning criminal procedure and policing.?" The result is
a substantial proportion ofthe Schengen Convention and a large number ofthe
secondary Schengen measures integrated into the EU and EC legal orders in 1999
been or would be amended, repealed, or supplemented by EC or EU acts.242
Court ofJustice has ruled on the provisions of the Schengen acquis on a
of occasions, in relation to the double jeopardy rules.r" the adoption of
ibsequent implementing rneasures.?" the integration of the Schengen Secretariat
into the Council.?" the operation of the SIS;246 the freedom to travel rules;"?
on external borders.?" and on the scope ofthe rules concerning the British
to the Schengen acquls.r" A case concerning SIS contracts was settled.F"
Court has not yet determined the legal effect of the Schengen measures,
provision ofthem.F" although it has ruled on the relationship between the
acquis and EU free movement law. 252Also, the Court has ruled that the
tegration ofthe Schengen acquisinto the EC and EU legal order means that the
can no longer be interpreted according to the normal rules ofpublic interlaw,
but rather interpreted taking the EU framework into account.F" On
hand, the historical context ofthe pre-existence ofthe Schengen acquis
factor justifying the Council's decision to apply unusual rules concernadoption
of visas and borders implementing mcasures.P" and the Court
Instance (as it then was) also justified the adoption of unusual measures
cernmg the hiring of Council staffin light ofthe Schengen Protocol.255 With
there appears to be a fundamental inconsistency in the case law as to
the Schengen acquis should be subject to special treatment or not.
Institutional Framework40
this power was spent.P" and this provision was duly repealed by the Treaty
Lisbon.?"
As for the staff of the Schengen Secretariat, the Protocol provided for
Council to adopt arrangements for their integration into the Council's
The Council's decision to this end was unsuccessfully challenged.m
The Council also decided to adopt further measures concerning the management
and financing of contracts relating to the SIS,234 and providing a Secretariat
for the Schengen data supervisory authority.m The latter Decision was
repealed when ajoint secretariat for different third pillar data supervisory
ities was established.?"
The Protocol also set out specific rules for measures, adopted after the entry
force of the Treaty of Amsterdam, which 'build upon' the Schengen acquis.
measures shall be 'subject to the relevant provisions of the treaties'r"? So after
point all Schengen-related measures have had to be regarded as 'regular'
EC law (until the Treaty of Lisbon entered into force) or EU law, with no
rules applying as regards their legal base (and therefore no special rules
decision-making or the Court ofJustice, other than those rules applicable
JHA measures adopted in the same area). However, there are still differences between
measures building upon the Schengen acquis and other measures to be adopted
the EC or EU Treaties, as regards the territorial scope ofthe measures.P"
In practice, nearly all EU measures concerning visas, border controls,
irregular immigration adopted or proposed since 1 May 1999 have built
Schengen acquisP" So have a handful of measures concerning legal nugranons
230 On the separate issue ofthe extension ofthe Schengen acquisto the Member States
the EU later, see 2.2.5.3 below; on the later extension ofthe acquisto Switzerland and Lie'cm'"",
see 2.2.5.4 below. 231 It does not appear in the amended version of
232 Previous Art 7; this was the only provision of the Protocol which provided for the
to act by QMV. This article was repealed by the Treaty of Lisbon, presumably because
was now spent. 233 [1999] OJ L 119; on the case law, see n
2.14 One set of Decisions was applicable from 1999-2003 (Council Decisions 19S19/:322
1999/323, [1999] OJ L 123/49 and 51, repealed as of27 Nov 2003 by Council Decisions
and 2003/836, [2003] OJ L 318/22 and 23), while the other has been applicable since 1999
(Council Decisions 1999/870 and 2000/265, [1999] OJ L 337/41 and [2000] OJ L 85/12;
has been amended by Decisions 2000/664/EC ([2000] OJ L 278/24),2003/171 ([2003]
2007/155 ([2007] OJ L 68/5), 2008/319 ([2008] OJ L 109/30),2008/670 ([2008] OJ L
2009/915 ([2009] OJ L 323/9)). See also Decision 2007/149 ([2007] OJ L 66/19) and the
to the relevant Decision ofthe Schengen Executive Committee ([2000] OJ L 239/444) in
L 179/50, [2008] OJ L 113/21, and [2010] OJ L 14/9.
235 Decision 1999/438 ([1999] OJ L 176/34).
236 Decision 2000/641 ([2000] OJ L 271/1), which replaced Decision 1999/438 as
(Art 6, Decision 2000/641). On third pillar data protection, see further 12.3 and
237 Art 5(1), first sub-paragraph, which was not amended by the Treaty of Lisbon.
despite any failure to allocate the original acquis (see Art 5(2), repealed by the
Despite the repeal of Art 5(2), the general rule in the first sub-paragraph ofArt 5(1)
vent the adoption of any measure relating to the SIS (ie the only parts of the
allocated to a Treaty base) from being adopted using the 'wrong' legal base.
238 See 2.2.5 below. 239 See 2.5 of chs 3, 4, and 7. 240 See 6.2.5.
43Overview of the institutional framework
to any decisionto extend criminal law competence (Arts82(1)(d) and 83(1), third
TFEU), to alter decision-making rules relating to familylaw (Art 81(3), secondsubor
to extend the powers of the European Public Prosecutor (Art 86(4) TFEU).
would be adopted by the European Council, rather than the Council. The EP
of consent except asregardsArt 81(3) TFEU, where it need only be consulted.
revised TEU. The passerelle procedure requires the unanimous support of the
and the consentofthe EP,plusinvolvementby national parliaments.This procedure
actsof the Council, so cannot applyto Art 86(4) TFEU, which providesfor action by
CounciL There are severalspecific provisionsin the Treaties which are not subject
(Art 353 TFEU), but none of these exemptions concern JHA matters: It should
in the context of enhanced cooperation, the Member Statesparticipanng m that
that the decision-making rules will changefor them: see Art 333 TFEU and
275 Arts 82(3) and 83(3) TFEU.
are Arts 86 (European PublicProsecutor) and 87(3) (operational policecooperation)
TIle detaus of this procedure are set out in Art 294 TFEU, which does not differin substance
Art 251EC. 267 Sees 2.3 of chs6 and 9-12.
(European Public Prosecutor), 87(3) (police operations), 89 (cross-border police
81(3) (familylaw), and 77(3) (passports) TFEU .
has the power of consent as regards legislation concerning the European Pubhc
86(1) TFEU).
concept, see Art 289(2) TFEU 271 See COM (2009) 665, 3 Dec 2009.
particularly 9.2.3, 10.2.3, and 12.2.3 below, as well as the treaties discussed in 2.7.2
pr1ooedur,e')Lbb to legal migration and to most criminal law and policing issues.i'?
unanimity in the Council was retained for some sensitive issues of
law and policing, family law, and the adoption of measures relating
passports and similar documents.f" In most of these cases, the EP is only
)ils:ulteci, but it has a new power of consent in some cases.269
These cases of
cision-rnaking are examples of 'special legislative procedures' that differ from
ordinary procedure.F? Legislative proposals that were pending when the
of Lisbon entered into force were subject to the revised decision-making
(-,rpcll1n~s immediately as regards immigration, asylum, and civil law, but prorelating
to policing and criminal law lapsed due to the change in legal
and had to be proposed again.F"
in the Council (or European Council) also applies to possible
tensions of competence, or changes to decision-making rules.F" The revised
provides for a general power to alter decision-making rules (known as
which applies to Title V as well as most of the rest of the Treaties.
a decision, without Treaty amendment, to move from unanimity
or from a special legislative procedure to the ordinary legislative proceFinally,
Title V provides for two different variations of decision-making
special rule (widely known as the 'emergency brake') relating to some
criminal law, if a Member State considers that a proposal 'would affect
amental aspects of its criminal justice system',275 and a special rule (referred
book as the 'pseudo-veto') relating to some cases where unanimity
the Council.?" In either case, a 'fast track' to 'enhanced cooperation',
Institutional Framework42
all, the basic rules governingJHA cooperation were 'reunited' in one Title
V of Part Three) ofthe EC Treaty, which was in turn renamed the Treaty on
Functioning of the European Union (TFEU), because pursuant to the
Lisbon, the EU replaced and succeeded the European Cornmunitv."? In
the previous 'third pillar' was transferred into what was formerly known as
Community legal order, and the TEU no longer contains any detailed provisions
on JHA matters. However, the TEU still specifies that the development
law as a whole remains an objective of the EU:258
The Union shall offer its citizens an area offreedom, security and justice without
frontiers, in which the free movement of persons is ensured in conjunction with
priate measures with respect to external border controls, asylum, immigration
prevention and combating of crime.
The previous third pillar has, for now, a form of legal 'afterlife', in the
transitional rules relating to the jurisdiction of the Court ofJustice over
pillar measures adopted before the entry into force of the Treaty
existing measures') and the legal effect ofthose measures.F'? Although the
ofLisbon contains most ofthe provisions ofthe rejected Constitutional
it is not identical to that Treaty, in particular as regards the opt-cuts appll.ca!?!
toJHA law.
Title V contains in turn general provisions."! rules on rmnugration
asylum.v? an Article on civil law;263 five Articles on criminal law;264
articles on policing.v" Because of the abolition of the third pillar,
legal instruments (Directives and Regulations) have had to be used to
policing and criminal law since the entry into force of the Treaty of
follows that the principles ofdirect effect and supremacy of 'Community'
ments apply to measures in this field adopted after that date as well.
As for decision-making rules, the Treaty of Lisbon extended QMV
Council and eo-decision with the EP (now known as the 'ordinary
257 Art 1, third paragraph, revisedTEU.
258 Art 3(2),revisedTEU This provisionisidenticalto the prior Art 2, fourth ;n~lpn'c 'T1Rl
for the added words 'without internal frontiers' and the replacementof the obligation
and develop'the areaoffreedom, security, andjustice with the obligation to 'offer' it.
the 'objectives' clause of the EC Treaty (as it then was) has been deleted by the
includingArt 3(1)(d) EC, which haddefinedthe objectivesofthe Community. This ciausenaa
relevantin somecases concerning the interpretation of the powers ofthe EC; see,for
C-170/96 Commission v Council [1998] ECR 1-2763. Equally,the Court ofJustice had lClCWCUl
prior Art 2, fourth indent TEU in some criminal lawjudgments: see 2.2.2.2 above.
259 See 2.2.3.3 below.
260 [2004] OJ C 310.On theJHA provisionsof the Constitutional Treaty, see the
of this book, pp 85-90. 261 Ch 1 of Title V (Arts67-76 TFEU), discussed in
262 Ch 2 of Title V (Arts77-80 TFEU), discussed in chs 3-7 below.
263 Ch 3 of Title V (Art 81 TFEU), discussed in ch 8 below.
264 Ch 4 of Title V (Arts82-86 TFEU), discussed in chs 9-11 below.
26S Ch 5 of Title V (Arts87-89 TFEU), discussed in ch 12below.
43Overview of the institutional framework
ofthis procedure are set out in Art 294 TFEU, which does not differ in substance
Art 251 EC. 267 See s 2.3 of chs 6 and 9-12.
86(1) (European Public Prosecutor), 87(3) (police operations), 89 (cross-border police
81(3) (family law), and 77(3) (passports) TFEU. .
has the power of consent as regards legislation concerning the European Public
86(1) TFEU).
concept, see Art 289(2) TFEU. 271 See COM (2009) 665, 3 Dec 2009.
particularly 9.2.3, 10.2.3, and 12.2.3 below, as well as the treaties discussed in 2.7.2
to any decision to extend criminal law competence (Arts 82(1)(d) and 83(1), third
TFEU), to alter decision-making rules relating to family law (Art 81(3), second subor
to extend the powers of the European Public Prosecutor (Art 86(4) TFEU).
would be adopted by the European Council, rather than the Council. The EP
of consent except as regards Art 81(3) TFEU, where it need only be consulted.
revised TEU. The passerelle procedure requires the unanimous support of the
and the consent ofthe EP, plus involvement by national parliaments. This procedure
acts ofthe Council, so cannot apply to Art 86(4) TFEU, which provides for action by
There are several specific provisions in the Treaties which are not subject
(Art 353 TFEU), but none of these exemptions concern JHA matters: It should
the context of enhanced cooperation, the Member States participating III that
that the decision-making rules will change for them: see Art 333 TFEU and
275 Arts 82(3) and 83(3) TFEU.
Arts 86 (European Public Prosecutor) and 87(3) (operational police cooperation)
procedure'j/?" to legal migration and to most criminal law and policing issues."?
However, unanimity in the Council was retained for some sensitive issues of
criminal law and policing, family law, and the adoption of measures relating
to passports and similar documents.f" In most of these cases, the EP is only
consulted, but it has a new power of consent in some cases.
269
These cases of
decision-making are examples of 'special legislative procedures' that differ from
the ordinary procedure.F" Legislative proposals that were pending when the
eaty of Lisbon entered into force were subject to the revised decision-making
rocedures immediately as regards immigration, asylum, and civil law, but proosals
relating to policing and criminal law lapsed due to the change in legal
a~is,271 and had to be proposed again.272
Unanimity in the Council (or European Council) also applies to possible
xtensions of competence, or changes to decision-making rules.F" The revised
EU also provides for a general power to alter decision-making rules (known as
sserelle'), which applies to Title V as well as most of the rest of the Treaties.
is.permits a decision, without Treaty amendment, to move from unanimity
MV or from a special legislative procedure to the ordinary legislative proceFinally,
Title V provides for two different variations of decision-making
special rule (widely known as the 'emergency brake') relating to some
criminal law, if a Member State considers that a proposal 'would affect
damental aspects of its criminal justice system',275 and a special rule (referred
book as the 'pseudo-veto') relating to some cases where unanimity
the Council.I" In either case, a 'fast track' to 'enhanced cooperation',
Institutional Framework
The previous third pillar has, for now, a form of legal 'afterlife', in the
transitional rules relating to the jurisdiction of the Court ofJustice over
pillar measures adopted before the entry into force ofthe Treaty ofLisbon ('pr
existing measures') and the legal effect ofthose measures.F" Although the Trea
ofLisbon contains most ofthe provisions ofthe rejected Constitutional Treaty,2
it is not identical to that Treaty, in particular as regards the opt-outs apnlicabl
toJHA law.
Title V contains in turn general provisionsr'?' rules on immigration
asylumr'''" an Article on civil Iaw.P:' five Articles on criminal law;264
articles on policing.f" Because of the abolition of the third pillar, 'Communi
legal instruments (Directives and Regulations) have had to be used to
policing and criminal law since the entry into force of the Treaty of
follows that the principles ofdirect effect and supremacy of'Community'
ments apply to measures in this field adopted after that date as well.
As for decision-making rules, the Treaty of Lisbon extended QMV
Council and co-decision with the EP (now known as the 'ordinary
The Union shall offer its citizens an area offreedom, security and justice without
frontiers, in which the free movement of persons is ensured in conjunction with
priate measures with respect to external border controls, asylum, immigration
prevention and combating of crime.
257 Art 1, third paragraph, revised TEU.
258 Art 3(2), revised TEU. This provision is identical to the prior Art 2, fourth indent
for the added words 'without internal frontiers' and the replacement of the obligation
and develop' the area offreedom, security, and justice with the obligation to 'offer' it.
the 'objectives' clause of the EC Treaty (as it then was) has been deleted by the
including Art 3(1)(d) EC, which had defined the objectives ofthe Community. This clause nau
relevant in some cases concerning the interpretation ofthe powers ofthe EC; see, for
C-170/96 Commission v Council [1998] ECR 1-2763. Equally, the Court ofJustice had
prior Art 2, fourth indent TEU in some criminal law judgments: see 2.2.2.2 above.
259 See 2.2.3.3 below.
260 [2004] OJ C 310. On theJHA provisions ofthe Constitutional Treaty, see the
ofthis book, pp 85-90. 261 Ch 1 of Title V (Arts 67-76 TFEU), discussed
262 Ch 2 ofTitle V (Arts 77-80 TFEU), discussed in chs 3-7 below.
263 Ch 3 of Title V (Art 81 TFEU), discussed in ch 8 below.
264 Ch 4 ofTitle V (Arts 82-86 TFEU), discussed in chs 9-11 below.
265 Ch 5 ofTitle V (Arts 87-89 TFEU), discussed in eh 12 below.
all, the basic rules governingJHA cooperation were 'reunited' in one Title
V ofPart Three) ofthe EC Treaty, which was in turn renamed the Treaty on
Functioning of the European Union (TFEU), because pursuant to the Treaty
Lisbon, the EU replaced and succeeded the European Communiry.i'" In
the previous 'third pillar' was transferred into what was formerly known as
Community legal order, and the TEU no longer contains any detailed nr""ii<ir>n<
on JHA matters. However, the TEU still specifies that the development
law as a whole remains an objective of the EU:258
42
45Overview ofthe institutional framework
the basic rules on the Court's jurisdiction and functioning after the Treaty of Lisbon, see
revised TEU, and Arts 251-281 TFEU.
these transitional rules, see 2.2.3.3 below. 290 See 2.2.2.2 above.
276 TFEU. Because the wording of this exception has not been amended, any future
isprudence concerning the interpretation of the former Art 35(5) TEU must apply to Art 276
vice versa. For interpretation of the previous clause, see 2.2.2.2 above. While, as noted
are no cases to date touching upon the interpretation ofthe former Art 35(5) TEU, it is
the Court will be asked to interpret this provision pursuant to its transitional jurisdicover
pre-existmz third pillar measures (see 2.2.3.3 below). 292 See 2.2.2 above.
291 TFEU, which amended the prior Art 202 EC. Again, on the previous rules, see
above.
The Commission proposed new general rules shortly after the entry into force of the Treaty
COM (2010) 83, 9 Mar 2010.
the substance ofthe previous rules, see 2.2.2.2 above; on the transitional rules, see 2.2.3.3
See the Commission communication on the use of the procedure (COM (2009) 673, 9 Dec
provisions in each legislative act which provides for the procedure.r'" So
no JHA legislation which provides for the adoption ofdelegated acts has been
adopted or proposed; it remains to be seen if and when the measures adopted
the Treaty of Lisbon which provide for RPS (including the relevantJHA
measures) will be amended to provide for the delegated acts procedure instead.
There is still provision for the adoption of implementing measures in other
285 and the general legal framework governing the adoption of implementmeasures
will likely be replaced shortly after the entry into force of the
of Lisbon.r'" The new general rules will replace the rules which previgoverned
the adoption ofimplementing measures (including as regardsJHA
m(~asur(~s), except for the prior rules concerning the use of the RPS procedure
measures adopted before the entry into force of the Treaty. Again, measures
pre-existing third pillar acts will continue to be subject to the
previous rules on implementing third pillar measures for as long as the relevant
transitional rules are applicable.r"?
Moving on to the jurisdiction of the Court ofJustice over JHA matters, the
previously imposed relating to immigration, asylum, and civil law
the one hand (the former Title IV EC), and the former third pillar on the
(the former third pillar), were both rernoved.i'" save for an exception which
only to policing and criminal law (leaving aside the transitional rules
pre-existing third pillar measuresl.r" This exception is the retention of the
exception, as set out in the former Article 35(5) TEU,290 relating to
j1l1JiscirctlO,n over 'the validity or proportionality of operations carried out by the
or other law-enforcement services ofa Member State or the exercise ofthe
responsibilities incumbent upon Member States with regard to the maintenance
and order and the safeguarding of internal securiry'r'?'
special 'urgency' procedure for certain JHA cases before the Court of
first created in 2008, remains in force. 292
In addition, the Treaty ofLisbon
Institutional Framework44
A legislative act may delegate to the Commission the power to adopt nCI11-1e~;is]lat.ive
acts of general application to supplement or amend certain non-essential elements
legislative act.
The objectives, content, scope and duration ofthe delegation ofpower shall be
itly defined in the legislative acts. The essential elements of an area shall be reserved
the legislative act and accordingly shall not be the subject of a delegation of power.
The legislation in question must explicitly lay down the conditions for such
egations of power, which 'may' be either the revocation of the delegated
by the EP or the Council, and/or a power for the EP or the Council to block
entry into force ofthe delegated act by objecting to it within a specified period.
The conditions for the application of the delegated powers rule are very
to those which previously applied to the 'regulatory procedure with <n-"";",,,,'
(RPS), a special rule which gave the EP and the Council powers ofscrutiny
the Commission's adoption of measures 'implementing' EC legislation adopted
by means of the eo-decision procedure (as it was then known) before the
into force of the Treaty of Lisbon. 282 However, the control process is different,
the delegated powers provision applies to all EU legislation, not just lej:!;lslariol)
adopted by the ordinary legislative procedure (as it is now called). Due to
abolition of the previous third pillar, this also means that this provision will
apply to policing and criminal law measures adopted after the entry into
the Treaty of Lisbon, although measures implementing pre-existing third
acts continue to be subject to the previous rules on implementing third
measures for as long as the relevant transitional rules are applicable.F" There
not be any general rules on the use of the delegated acts procedure, but
ie authorization of some Member States to proceed without the others, is provided
for.277
Next, as regards policing and criminal law, there is no longer any right for
individual Member States to submit initiatives for legislation, but it is still open to
a group of one-quarter of the Member States (meaning, at present, at least seven
Member States) to submit a joint initiative.m
JHA law is also subject to the general changes which the Treaty of Lisbon
made to EU law as regards legislative and non-legislative acts. The 'ordinary'
and 'special' legislative procedures (as described above) are subject to hortlrlllor
rules concerning openness, transparency, and scrutiny by national parliaments.
The Treaty also now provides for the adoption of 'delegated' acts in~lpl,emlenLtirlg
legislative measures, as follows: 28o
277 On the enhanced cooperation rules following the entry into force of the Treaty of
see 2.2.5.5 below. 278 Art 76 TFEU, discussed further below (see
279 See further 2.5 below. 2BO Art 290(1) TFEU. 281 Art 290(2) TFEU.
282 See further 2.2.2.1 above.
283 On the substance ofthe previous rules, see 2.2.2.2 above; on the transitional rules, see
below.
45Overview of the institutional framework
specific provisions in each legislative act which provides for the procedure.F'" So
far, no JHA legislation which provides for the adoption ofdelegated acts has been
adopted or proposed; it remains to be seen if and when the measures adopted
before the Treaty of Lisbon which provide for RPS (including the relevant JHA
measures) will be amended to provide for the delegated acts procedure instead.
There is still provision for the adoption of implementing measures in other
cases/ss and the general legal framework governing the adoption of implementing
measures will likely be replaced shortly after the entry into force of the
Treaty of Lisbon.i'" The new general rules will replace the rules which previously
governed the adoption ofimplementing measures (including as regardsJHA
measures), except for the prior rules concerning the use of the RPS procedure
for measures adopted before the entry into force of the Treaty. Again, measures
implementing pre-existing third pillar acts will continue to be subject to the
previous rules on implementing third pillar measures for as long as the relevant
transitional rules are applicable.P"
Moving on to the jurisdiction of the Court ofJustice over JHA matters, the
restrictions previously imposed relating to immigration, asylum, and civil law
on the one hand (the former Title IV EC), and the former third pillar on the
(:)ther (the former third pillar), were both removed.F" save for an exception which
relates only to policing and criminal law (leaving aside the transitional rules
fqr pre-existing third pillar measuresl.f" This exception is the retention of the
revious exception, as set out in the former Article 35(5) TEU,290 relating to
risdiction over 'the validity or proportionality of operations carried out by the
lice or other law-enforcement services ofa Member State or the exercise ofthe
sponsibilities incumbent upon Member States with regard to the maintenance
law and order and the safeguarding of internal security?"
The special 'urgency' procedure for certain JHA cases before the Court of
stice, first created in 2008, remains in force."? In addition, the Treaty ofLisbon
284 See the Commission communication on the use of the procedure (CaM (2009) 673, 9 Dec
09).
Art 291 TFEU, which amended the prior Art 202 EC. Again, on the previous rules, see
above.
The Commission proposed new general rules shortly after the entry into force of the Treaty
CaM (2010) 83, 9 Mar 2010.
On the substance ofthe previous rules, see 2.2.2.2 above; on the transitional rules, see 2.2.3.3
ow.
88. For the basic rules on the Court's jurisdiction and functioning after the Treaty of Lisbon, see
19, revised TEU, and Arts 251-281 TFEU
289 On these transitional rules, see 2.2.3.3 below. 290 See 2.2.2.2 above.
291>Art 276 TFEU Because the wording of this exception has not been amended, any future
isprudence concerning the interpretation of the former Art 35(5) TEU must apply to Art 276
and vice versa. For interpretation of the previous clause, see 2.2.2.2 above. While, as noted
there are no cases to date touching upon the interpretation ofthe former Art 35(5) TEU, it is
that the Court will be asked to interpret this provision pursuant to its transitional jurisdicpre-existing
third pillar measures (see 2.2.3.3 below). 292 See 2.2.2 above.
Institutional Framework44
ie authorization of some Member States to proceed without the others, is
vided for.277
Next, as regards policing and criminal law, there is no longer any right
individual Member States to submit initiatives for legislation, but it is still open
a group of one-quarter of the Member States (meaning, at present, at least
Member States) to submit a joint initiative.m
JHA law is also subject to the general changes which the Treaty of
made to EU law as regards legislative and non-legislative acts. The 'r-rrr-ii ri a r-o-'
and 'special' legislative procedures (as described above) are subject to r-c r-t-i r-rrl orrules
concerning openness, transparency, and scrutiny by national parliaments,
The Treaty also now provides for the adoption of'delegated' acts implementing
legislative measures, as follows:28o
A legislative act may delegate to the Commission the power to adopt non-Iegjslative
acts of general application to supplement or amend certain non-essential elements
legislative act.
The objectives, content, scope and duration ofthe delegation ofpower shall be
itly defined in the legislative acts. The essential elements of an area shall be r,.",.nJf'<;
the legislative act and accordingly shall not be the subject ofa delegation of power.
The legislation in question must explicitly lay down the conditions for
egations of power, which 'may' be either the revocation of the delegated
by the EP or the Council, and/or a power for the EP or the Council to
entry into force ofthe delegated act by objecting to it within a specified
The conditions for the application of the delegated powers rule are very
to those which previously applied to the 'regulatory procedure with scrutnn
(RPS), a special rule which gave the EP and the Council powers
the Commission's adoption of measures 'implementing' EC legislation
by means of the eo-decision procedure (as it was then known) before
into force of the Treaty of Lisbon.282 However, the control process is ditterent,
the delegated powers provision applies to all EU legislation, not just legislatj
adopted by the ordinary legislative procedure (as it is now called). Due
abolition of the previous third pillar, this also means that this provision
apply to policing and criminal law measures adopted after the entry into
the Treaty of Lisbon, although measures implementing pre-existing
acts continue to be subject to the previous rules on implementing
measures for as long as the relevant transitional rules are applicable.i'"
not be any general rules on the use of the delegated acts procedure,
277 On the enhanced cooperation rules following the entry into force of the
see 2.2.5.5 below. 278 Art 76 TFEU, discussed further below
279 See further 2.5 below. 280 Art 290(1) TFEU 281 Art 290(2) TFEU.
282 See further 2.2.2.1 above.
283 On the substance of the previous rules, see 2.2.2.2 above; on the transitional rules,
below.
47Overview of the institutional framework
TEU and Art 355 TFEU. Although the previous TEU did not define its territorial
pillar measures had specific provisions on the subject: see, for instance, Art 8 of
Decision on unauthorized entry and residence ([2002] OJ L 328/1), applying that
details, see 2.2.2.3 above. 299 See 2.5 below. 300 See 2.2.4 below.
8-13 TFEU, requiring all EU policies to take account of(respectively) sex equality, social
non-discrimination, the environment, consumer protection, and the welfare of animals.
16 TFEU. See further 12.2.3 below.
18 TFEU (former Art 12 EC). It should be noted, however, that the previous Art 12 EC
Yapplied to third pillar cooperation: see Case C-123/08 Wolzenburg [2009] ECR 1-9621 and
(:>524/06 Huber [2008] ECR 1-9705, and the discussion in 9.4 below.
Art 338 TFEU (former Art 285 EC). On crime statistics, see 10.7 below.
Art 340 TFEU (former Art 288 EC), which the Court ofJustice has jurisdiction pursuant
t268 TFEU (former Art 235 EC). As discussed above (2.2.2.2), the Court ofJustice condthat
it had no jurisdiction 'whatsoever' over this issue as regards the prior third pillar: Case
5/04 P SECI [2007] ECR 1-1657.
TFEU (former Art 292 EC), which reserves exclusivejurisdiction for disputes between
concerning EU law upon the Court ofJustice, to the extent that it has jurisdiction
concerned: see Case C-459/03 Commission v Ireland [2006] ECR 1-4635. Until 1 Dec
rule in the prior Art 35(7) TEU will apply to disputes concerning prior third pillar
the transitional rules discussed in 2.2.3.3 below).
TFEU (former Arts 296-298 EC). There is no reason to doubt that the juristhe
interpretation of the previous Arts 296-298 EC continues to apply after the entry
Treaty ofLisbon to Arts 346-348 TFEU, given the lack ofsubstantive amendment
provisions. On that case law, see the cases on the borderline between foreign policy and
law, discussed in 3.2.4 below.
TFEU (former Art 307 EC). See further 2.7 below.
TFEU (former Art 308 EC), which provides for the adoption of measures by means
in the Council and consent ofthe EP '[i]faction by the Union should prove necessary,
framework ofthe policies defined in the Treaties, to attain one of the objectives set out
and the Treaties have not provided the necessary powers'. The predecessor clause
to the previous third pillar: see by analogy, Joined Cases C-402/05 P and C-415/05 P
Barakaat [2008] ECR 1-6351, paras 194-205, and the discussion ofArt 75 TFEU below
amendments were also made to the Protocol integrating the Schengen acquis
the EU legal order.?"
Finally, a number of the more general amendments to the Treaties made by
Treaty of Lisbon have a particular impact on EU JHA law. The amendrelating
to the legitimacy and accountability of the EU are discussed furseparately.F"
as are the general amendments relating to the competence
EU.300
The integration of the previous 'third pillar' into the EC Treaty
the TFEU) means also that various general and final provisions of the
BU apply to policing and criminal law. This could be relevant as regards
ovisions having general application.P'" data protection.i'" non-discrimination
of nationaliry.t'" statistics.?" EU Iiabihty.e'" dispute settlernent.I'"
security exceptions.?"? pre-existing treaties with third states.i'" the EU's
powers'r'?" and the territorial scope of EU law."? The JHA provisions
Treaties are covered (as they were before) by the provision on Treaty
Institutional Framework46
293 Cases (none yet reported): C-550/09 E and F, judgment of 29 June 2010;
C-189/1O Melki and Abdeli, judgment of22June 2010; and C-211/10 PPU
2010. A further child abduction case is pending: Case C-400/10 PPU McB.
294 On immigration and asylum law: Case C-69/10 Diouj, pending and Melki
civil law: Cases C-509/09 eDate Advertising, C-87/1O Electrosteel, C-l12/lO Zaza
Prism Investments, C-144/10 Berliner Verkehrsbetriebe, C-145/10 Painer, C-161/1O 1vum","""
Rastelli Davide and C, C-213/10 F-Tex, Povse (ibid), C-296/10 Purrucker II,
Siderurgica Nacional, C-327/1O Lindner, and McB (ibid) all pending; on criminal
Saimeron Sanchez and C-264/10 Kita, all pending (except Melki and Abdeli and
asylum law and criminal law: Case C-l05/10 PPU Cataev and Cataeva, withdrawn,
annulment action in Case C-355/10 EP v Council, pending.
295 See S Peers, 'The Future of the EU Judicial System and EC Immigration
(2005) 7 EJML 263.
296 See further 2.7.2 below. On the substance ofthe treaties which
negotiated in this area, see 9.10 and 12.11 below.
If such a question [for a preliminary ruling] is raised in a case pending before a court
tribunal ofa Member State with regard to a person in custody, the Court ofJustice
European Union shall act with the minimum of delay.
This new provision, which presumably applies also to the Court's transitional
jurisdiction over pre-existing third pillar measures, has already been
twice after the entry into force ofthe Treaty, as regards persons held in detention
in connection with EU anti-terrorist sanctions laws and the irregular r.rossrno
of internal borders; the Court has also given an emergency ruling in a
abduction case.293
It does not create a separate new procedure by itself, but
requires the Court to invoke the procedures (the urgent JHA procedure
more general accelerated procedures) already set out in the Court's
Rules ofProcedure.
In practice, the Court ofJustice received a number ofJHA reterences
national courts in the first few months after the Treaty of Lisbon ClllClCU
force,294 but it was too early to tell whether the Court ofJustice's case load
area would increase significantly or not. If it does increase significantly at
point, then there will have to be consideration ofmeasures to address the
on the EU judicial system, which could take the form of general changes
system and/or specific changes relating to JHA cases.?" But it is certainly
to consider such changes yet, at least on JHA grounds alone.
The transfer ofthe third pillar to the first pillar also means that the
rules on external relations are applicable to policing and criminal law l11,dlll~L>, 111
ofthe rules on external relations which were applicable to the former
It should also be noted that the Treaty ofLisbon widened the scope
out rules applicable to the UK, Ireland, and Denmark, and turtherrnore
nificant changes to those rules. These developments are considered
added a new paragraph to Article 267 TFEU (former Article 234 EC), concerrnng
preliminary rulings from national courts to the Court ofJustice, which nrovides
that:
47Overview of the institutional framework
TEU and Art 355 TFEU. Although the previous TEU did not define its territorial
pillar measures had specific provisions on the subject: see, for instance, Art 8 of
Decision on unauthorized entry and residence ([2002] OJ L 328/1), applying that
details, see 2.2.2.3 above. 299 See 2.5 below. 300 See 2.2.4 below.
8-13 TFEU, requiring all EU policies to take account of(respectively) sex equality, social
non-discrimination, the environment, consumer protection, and the welfare of animals.
16 TFEU. See further 12.2.3 below.
18 TFEU (former Art 12 EC). It should be noted, however, that the previous Art 12 EC
Yapplied to third pillar cooperation: see Case C-123/08 Wolzenburg [2009] ECR 1-9621 and
(:>524/06 Huber [2008] ECR 1-9705, and the discussion in 9.4 below.
Art 338 TFEU (former Art 285 EC). On crime statistics, see 10.7 below.
Art 340 TFEU (former Art 288 EC), which the Court ofJustice has jurisdiction pursuant
t268 TFEU (former Art 235 EC). As discussed above (2.2.2.2), the Court ofJustice condthat
it had no jurisdiction 'whatsoever' over this issue as regards the prior third pillar: Case
5/04 P SECI [2007] ECR 1-1657.
TFEU (former Art 292 EC), which reserves exclusivejurisdiction for disputes between
concerning EU law upon the Court ofJustice, to the extent that it has jurisdiction
concerned: see Case C-459/03 Commission v Ireland [2006] ECR 1-4635. Until 1 Dec
rule in the prior Art 35(7) TEU will apply to disputes concerning prior third pillar
the transitional rules discussed in 2.2.3.3 below).
TFEU (former Arts 296-298 EC). There is no reason to doubt that the juristhe
interpretation of the previous Arts 296-298 EC continues to apply after the entry
Treaty ofLisbon to Arts 346-348 TFEU, given the lack ofsubstantive amendment
provisions. On that case law, see the cases on the borderline between foreign policy and
law, discussed in 3.2.4 below.
TFEU (former Art 307 EC). See further 2.7 below.
TFEU (former Art 308 EC), which provides for the adoption of measures by means
in the Council and consent ofthe EP '[i]faction by the Union should prove necessary,
framework ofthe policies defined in the Treaties, to attain one of the objectives set out
and the Treaties have not provided the necessary powers'. The predecessor clause
to the previous third pillar: see by analogy, Joined Cases C-402/05 P and C-415/05 P
Barakaat [2008] ECR 1-6351, paras 194-205, and the discussion ofArt 75 TFEU below
amendments were also made to the Protocol integrating the Schengen acquis
the EU legal order.?"
Finally, a number of the more general amendments to the Treaties made by
Treaty of Lisbon have a particular impact on EU JHA law. The amendrelating
to the legitimacy and accountability of the EU are discussed furseparately.F"
as are the general amendments relating to the competence
EU.300
The integration of the previous 'third pillar' into the EC Treaty
the TFEU) means also that various general and final provisions of the
BU apply to policing and criminal law. This could be relevant as regards
ovisions having general application.P'" data protection.i'" non-discrimination
of nationaliry.t'" statistics.?" EU Iiabihty.e'" dispute settlernent.I'"
security exceptions.?"? pre-existing treaties with third states.i'" the EU's
powers'r'?" and the territorial scope of EU law."? The JHA provisions
Treaties are covered (as they were before) by the provision on Treaty
Institutional Framework46
293 Cases (none yet reported): C-550/09 E and F, judgment of 29 June 2010;
C-189/1O Melki and Abdeli, judgment of22June 2010; and C-211/10 PPU
2010. A further child abduction case is pending: Case C-400/10 PPU McB.
294 On immigration and asylum law: Case C-69/10 Diouj, pending and Melki
civil law: Cases C-509/09 eDate Advertising, C-87/1O Electrosteel, C-l12/lO Zaza
Prism Investments, C-144/10 Berliner Verkehrsbetriebe, C-145/10 Painer, C-161/1O 1vum","""
Rastelli Davide and C, C-213/10 F-Tex, Povse (ibid), C-296/10 Purrucker II,
Siderurgica Nacional, C-327/1O Lindner, and McB (ibid) all pending; on criminal
Saimeron Sanchez and C-264/10 Kita, all pending (except Melki and Abdeli and
asylum law and criminal law: Case C-l05/10 PPU Cataev and Cataeva, withdrawn,
annulment action in Case C-355/10 EP v Council, pending.
295 See S Peers, 'The Future of the EU Judicial System and EC Immigration
(2005) 7 EJML 263.
296 See further 2.7.2 below. On the substance ofthe treaties which
negotiated in this area, see 9.10 and 12.11 below.
If such a question [for a preliminary ruling] is raised in a case pending before a court
tribunal ofa Member State with regard to a person in custody, the Court ofJustice
European Union shall act with the minimum of delay.
This new provision, which presumably applies also to the Court's transitional
jurisdiction over pre-existing third pillar measures, has already been
twice after the entry into force ofthe Treaty, as regards persons held in detention
in connection with EU anti-terrorist sanctions laws and the irregular r.rossrno
of internal borders; the Court has also given an emergency ruling in a
abduction case.293
It does not create a separate new procedure by itself, but
requires the Court to invoke the procedures (the urgent JHA procedure
more general accelerated procedures) already set out in the Court's
Rules ofProcedure.
In practice, the Court ofJustice received a number ofJHA reterences
national courts in the first few months after the Treaty of Lisbon ClllClCU
force,294 but it was too early to tell whether the Court ofJustice's case load
area would increase significantly or not. If it does increase significantly at
point, then there will have to be consideration ofmeasures to address the
on the EU judicial system, which could take the form of general changes
system and/or specific changes relating to JHA cases.?" But it is certainly
to consider such changes yet, at least on JHA grounds alone.
The transfer ofthe third pillar to the first pillar also means that the
rules on external relations are applicable to policing and criminal law l11,dlll~L>, 111
ofthe rules on external relations which were applicable to the former
It should also be noted that the Treaty ofLisbon widened the scope
out rules applicable to the UK, Ireland, and Denmark, and turtherrnore
nificant changes to those rules. These developments are considered
added a new paragraph to Article 267 TFEU (former Article 234 EC), concerrnng
preliminary rulings from national courts to the Court ofJustice, which nrovides
that:
amendment, including new provisions on simplified Treaty amendment.i'!' There
is still an obligation to ensure consistency between the various policies of the
Union.t'" and the provisions concerning the relationship between the EU and its
Member States, including the division ofpower between them, could be particularly
relevant to JHA cooperation.P" So could the revised rules on the protection
ofhuman rights within the EU legal order.?"
49Overview of the institutional framework
Case C-188/10 and C-189/1O Melki and Abdeli,judgement of22June 2010, not yet
para 62. 316 Art 6 TEU; see 2.3 below.
On which, see 2.5 below.
judgments in criminal matters and, if necessary, through the approximation
of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle
of mutual recognition ofjudicia'! and extrajudicial decisions in civil matters.
Court ofJustice has stated that Article 67(2) is only addressed to the Union,
implicitly does not bind the Member States.315a
Equally, the other paragraphs
67 address the Union, not the Member States, so presumably must be
interpreted the same way.
All ofthe principles set out in Article 67 could be relevant to the interpretation
even possibly the validity ofJHA measures. The first paragraph places at the
ofJHA policy the twin obligation to respect both human rights and the
divergences between national laws across the EU. While human rights obligaare
referred to separately in the Treaty.?" the repeated mention ofthis issue
the specific field ofJHA should reinforce this obligation afortiori in this field.
obligation to respect divergent national traditions could be regarded as a
particular application of the principle of subsidiarity.317
The second to fourth paragraphs define in turn the concepts of 'freedom',
'securttv, and 'justice', although the word 'freedom' does not explicitly appear
paragraph 2. Article 67(2) is based on the prior Article 61(a) and (b) EC. As
compared to the previous Article 61(a) EC, the revised provision does not use
words 'free movement' or make reference to Article 14 EC (now Article 26
any longer. However, it should be noted that a link betweenJHA measas
a whole and the free movement of persons and the abolition of interfrontiers
is still made by the revised Article 3(2) TEU. The Union's other
imrmgranon-retated policies are no longer described partly as 'flanking' the aboofinternal
border controls, and the objectives clause in the JHA Title refers
expressly now to the principles of fairness (toward third-country nationals) and
sondanty (as between Member States).
I-urthermore, unlike the previous Article 61(a) and (b) EC, all aspects of the
policy are described as 'common', stateless persons are expressly defined
trnrd-countrv nationals, and there are new references to fairness and solidarfirst
of these changes reflects the 'common' policy on visas, asylum, and
lilllm1gr'atl,on referred to in Articles 77-79 TFEU, and makes clear that all aspects
policy must be considered common. Next, while Article 79(1) refers to
treatment' oflegally resident third-country nationals, Article 67(2) requires
allEUJHA policies relating to third-country nationals must be 'fair', applythat
principle therefore to irregular migrants and to asylum, visas, and borders
l'VLlLJ1C'. This principle in part derives from the 'Tampere programme' on JHA
Institutional Framework48
2.2.3.2. General provisions
The general provisions ofTitle V ofPart Three ofthe TFEU concern in turn: general
objectives (Article 67 TFEU); the role of the European Council (Article 68
TFEU); the role of national parliaments (Article 69 TFEU); evaluation ofJHA
policies (Article 70 TFEU); the creation of a standing committee on operational
security (Article 71 TFEU); a general security restriction (Article 72 TFEU);
coordination of national security agencies (Article 73 TFEU); competence to
adopt measures concerning administrative cooperation (Article 74 TFEU); competence
over anti-terrorism measures (Article 75 TFEU); and a rule re-sr-rvino
power for Member States to propose policing and criminal law initiatives collectively
(Article 76 TFEU). These provisions will be considered in turn.
First of all, Article 67 TFEU sets out objectives for the entire JHA Title,
replacing the two separate provisions previously set out in Article 61 EC
Article 29 of the prior TEU:315
1. The Union shall constitute an area of freedom, security and justice
respect for fundamental rights and the different legal systems and traditions
of the Member States.
2. It shall ensure the absence of internal border controls for persons and
frame a common policy on asylum, immigration and external border CVLlC1V"
based on solidarity between Member States, which is fair towards
country nationals. For the purpose of this Title, stateless persons shall
treated as third-country nationals.
3. The Union shall endeavour to ensure a high level ofsecurity through measures
to prevent and combat crime, racism and xenophobia, and through measures
for coordination and cooperation between police and judicial authorities
other competent authorities, as well as through the mutual recognition
311 The possible use ofthe passerel/e clause (revised Art 48(7) TEU) has been discussed above,
should also be noted that the Treaty ofLisbon created the possibility for a slightly simplified
for amending the Treaty provisions concerning EU internal policies (revised Art 48(6) TEU),
applies inter alia to Title V TFEU. See generally G Barrett, 'Creation's Final Laws: The
the Treaty of Lisbon on the "Final Provisions" ofEarlier Treaties' (2008) 27 YEL 3.
312 Art 7 TFEU, replacing the prior Art 3 TEU.
313 Arts 4 and 5 TEU. See respectively 2.2.3.2 and 2.5 below. On the general rules on EU
petence (Arts 2-6 TFEU), see 2.2.4 below. 314 Arts 6 and 7 TEU; see 2.3
315 It should be recalled that Art 3(2), revised TEU, sets out generalJHA objectives as part
EU's overall objectives: see 2.2.3.1 above.
amendment, including new provisions on simplified Treaty amendment.i'!' There
is still an obligation to ensure consistency between the various policies of the
Union.t'" and the provisions concerning the relationship between the EU and its
Member States, including the division ofpower between them, could be particularly
relevant to JHA cooperation.P" So could the revised rules on the protection
ofhuman rights within the EU legal order.?"
49Overview of the institutional framework
Case C-188/10 and C-189/1O Melki and Abdeli,judgement of22June 2010, not yet
para 62. 316 Art 6 TEU; see 2.3 below.
On which, see 2.5 below.
judgments in criminal matters and, if necessary, through the approximation
of criminal laws.
4. The Union shall facilitate access to justice, in particular through the principle
of mutual recognition ofjudicia'! and extrajudicial decisions in civil matters.
Court ofJustice has stated that Article 67(2) is only addressed to the Union,
implicitly does not bind the Member States.315a
Equally, the other paragraphs
67 address the Union, not the Member States, so presumably must be
interpreted the same way.
All ofthe principles set out in Article 67 could be relevant to the interpretation
even possibly the validity ofJHA measures. The first paragraph places at the
ofJHA policy the twin obligation to respect both human rights and the
divergences between national laws across the EU. While human rights obligaare
referred to separately in the Treaty.?" the repeated mention ofthis issue
the specific field ofJHA should reinforce this obligation afortiori in this field.
obligation to respect divergent national traditions could be regarded as a
particular application of the principle of subsidiarity.317
The second to fourth paragraphs define in turn the concepts of 'freedom',
'securttv, and 'justice', although the word 'freedom' does not explicitly appear
paragraph 2. Article 67(2) is based on the prior Article 61(a) and (b) EC. As
compared to the previous Article 61(a) EC, the revised provision does not use
words 'free movement' or make reference to Article 14 EC (now Article 26
any longer. However, it should be noted that a link betweenJHA measas
a whole and the free movement of persons and the abolition of interfrontiers
is still made by the revised Article 3(2) TEU. The Union's other
imrmgranon-retated policies are no longer described partly as 'flanking' the aboofinternal
border controls, and the objectives clause in the JHA Title refers
expressly now to the principles of fairness (toward third-country nationals) and
sondanty (as between Member States).
I-urthermore, unlike the previous Article 61(a) and (b) EC, all aspects of the
policy are described as 'common', stateless persons are expressly defined
trnrd-countrv nationals, and there are new references to fairness and solidarfirst
of these changes reflects the 'common' policy on visas, asylum, and
lilllm1gr'atl,on referred to in Articles 77-79 TFEU, and makes clear that all aspects
policy must be considered common. Next, while Article 79(1) refers to
treatment' oflegally resident third-country nationals, Article 67(2) requires
allEUJHA policies relating to third-country nationals must be 'fair', applythat
principle therefore to irregular migrants and to asylum, visas, and borders
l'VLlLJ1C'. This principle in part derives from the 'Tampere programme' on JHA
Institutional Framework48
2.2.3.2. General provisions
The general provisions ofTitle V ofPart Three ofthe TFEU concern in turn: general
objectives (Article 67 TFEU); the role of the European Council (Article 68
TFEU); the role of national parliaments (Article 69 TFEU); evaluation ofJHA
policies (Article 70 TFEU); the creation of a standing committee on operational
security (Article 71 TFEU); a general security restriction (Article 72 TFEU);
coordination of national security agencies (Article 73 TFEU); competence to
adopt measures concerning administrative cooperation (Article 74 TFEU); competence
over anti-terrorism measures (Article 75 TFEU); and a rule re-sr-rvino
power for Member States to propose policing and criminal law initiatives collectively
(Article 76 TFEU). These provisions will be considered in turn.
First of all, Article 67 TFEU sets out objectives for the entire JHA Title,
replacing the two separate provisions previously set out in Article 61 EC
Article 29 of the prior TEU:315
1. The Union shall constitute an area of freedom, security and justice
respect for fundamental rights and the different legal systems and traditions
of the Member States.
2. It shall ensure the absence of internal border controls for persons and
frame a common policy on asylum, immigration and external border CVLlC1V"
based on solidarity between Member States, which is fair towards
country nationals. For the purpose of this Title, stateless persons shall
treated as third-country nationals.
3. The Union shall endeavour to ensure a high level ofsecurity through measures
to prevent and combat crime, racism and xenophobia, and through measures
for coordination and cooperation between police and judicial authorities
other competent authorities, as well as through the mutual recognition
311 The possible use ofthe passerel/e clause (revised Art 48(7) TEU) has been discussed above,
should also be noted that the Treaty ofLisbon created the possibility for a slightly simplified
for amending the Treaty provisions concerning EU internal policies (revised Art 48(6) TEU),
applies inter alia to Title V TFEU. See generally G Barrett, 'Creation's Final Laws: The
the Treaty of Lisbon on the "Final Provisions" ofEarlier Treaties' (2008) 27 YEL 3.
312 Art 7 TFEU, replacing the prior Art 3 TEU.
313 Arts 4 and 5 TEU. See respectively 2.2.3.2 and 2.5 below. On the general rules on EU
petence (Arts 2-6 TFEU), see 2.2.4 below. 314 Arts 6 and 7 TEU; see 2.3
315 It should be recalled that Art 3(2), revised TEU, sets out generalJHA objectives as part
EU's overall objectives: see 2.2.3.1 above.
51Overview of the institutional framework
evaluation measures are non-legislative acts to be adopted by QMV in
y"'u",,-u on a proposal from the Commission, with no involvement of the EP. 328
is a new provision in the Treaties inserted by the Treaty ofLisbon, although
a number of previous measures had been adopted concerning evaluation
prior to the Treaty of Lisbon.
particular, a general system for evaluation was put in place, with one JHA
selected in turn for each cycle of evaluation,329 and there were also specific
~Y;S~\:;,Ul~ for evaluating candidate Member States, the application ofthe Schengen
15(4), revised TEU. 326 Art 15(5), revised TEU. 327 See 2.5 below.
On the accountability of evaluation measures, see 2.5 below.
Action ([1997] OJ L 344/7). The issues selected have been mutual assistance, drug
rafficking, the supply ofinformation to Europol, the European arrest warrant, and financial crime.
National Parliaments ensure that the proposals and legislative initiatives submitted under
Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the
arrangements laid down by the Protocol on the application of the principles of subsidiand
proportionality.
be noted that this special role for national parliaments only relates to
rn(~asur(es concerning policing and criminal law. Article 69 is considered further
of the analysis of the legitimacy ofEU JHA measures below.327
Next, Article 70 TFEU permits the Council to adopt evaluation measures:
With,,"t prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the
Commrssion, adopt measures laying down the arrangements whereby Member States,
collaboration with the Commission, conduct objective and impartial evaluation of
implementation of the Union policies referred to in this Title by Member States'
authorities, in particular in order to facilitate full application of the principle of mutual
recognmon. The European Parliament and national Parliaments shall be informed of the
and results of the evaluation.
adopted by the European Council in Tampere in 1999 are reflected in the measadopted
subsequently. These guidelines are adopted by 'consensus' in the
European Council, although the Treaty does not expressly define this concept.F"
is no specific role in JHA matters for the President of the European
V'JUJlH.Jl.r,
326
Article 68 TFEU differs from the prior role ofthe European Council
that there is a specific reference to operational cooperation, but surely the
European Council would not expect to play a major role in as regards, for
the planning of operations by the relevant EU agencies (Europol,
Eurojust, and Frontex, the EU border agency), since EU leaders obviously lack
specialist knowledge for this, and their involvement could compromise the
operations.
Article 69 refers to a specific rule for national parliaments as regards scrutiny
legislation:
Institutional Framework50
318 See, for instance, Art 2(a) ofDir 2003/86 on family reunion ([2003] OJ L 251/12).
319 See ch 8 below.
320 On the composition and functioning ofthe European Council, see the revised Art 15
321 See the 'Tampere programme', adopted in 1999, as well as the Hague programme dUlJp""l!J
2004 ([2005] OJ C 53/1). 322 [2010]
323 Art 15(1), revised TEU.
324 See the discussion of the implementation of the Tampere and Hague programmes in
chs 3-12, and the discussion substance ofthe Stockholm programme in s 2.3 ofchs 3-12.
policy objectives adopted in 1999 (see the discussion ofArticle 68 TFEU below).
Finally, the principle ofsolidarity is referred to in more detail in Article 80
and EU legislation already frequently defined third-country nationals as
itly including stateless persons.I'"
The first part of the third paragraph (up to the words, 'prevent and
crime') is similar to the prior Article 61(e) EC, and the remainder ofthe paragraph
is a succinct version of the prior Article 29 TEU, with the addition of a
reference to mutual recognition in criminal matters but without a reference
any specific crimes other than racism and xenophobia. However, mutual
nition in criminal matters is in any event referred to as the basis ofEU cr:iminal
law in Article 82(1) TFEU.
The fourth paragraph is more specific than the prior Article 61(c) EC,
ring now expressly to the principle of 'access to justice' and to specific prmciples
applicable to civil law. However, it should be noted that those principles are
out again (in the same words) in Article 81(1) TFEU, and an express power
adopt measures on 'effective access to [civil] justice' is set out in Article
TFEU.
319
Moreover, the reference to civil law is not exhaustive ('in particular')
and so the reference to 'access to justice' should also be understood as applvinz
criminal law (as regards legal aid, for instance) and to administrative proceedinzs
relating to immigration and asylum law.
Article 68 TFEU sets out a special role for the European Council in
area:
The European Council shall define the strategic guidelines for legislative and operational
planning within the area of freedom, security and justice.
This new provision largely reflects the role which the European Council
EU institution made up of Member States' heads of state or government)
already playing as regards JHA law before the Treaty ofLisbon.320 In partl,cuJar'
the European Council had already agreed multi-annual guidelines for
cooperation.>" This provision has already been applied to adopt the 'Stockholm
programme', the latest multi-yearJHA action programme, in December
Although the European Council is not a legislative body.I" such gUld(~1111eS
certainly politically highly significant since they are taken into account by
EU iristitutioris.V" They might also be legally relevant when interpreting
legislation, and as noted above, some aspects of the original JHA guideuru
51Overview of the institutional framework
evaluation measures are non-legislative acts to be adopted by QMV in
y"'u",,-u on a proposal from the Commission, with no involvement of the EP. 328
is a new provision in the Treaties inserted by the Treaty ofLisbon, although
a number of previous measures had been adopted concerning evaluation
prior to the Treaty of Lisbon.
particular, a general system for evaluation was put in place, with one JHA
selected in turn for each cycle of evaluation,329 and there were also specific
~Y;S~\:;,Ul~ for evaluating candidate Member States, the application ofthe Schengen
15(4), revised TEU. 326 Art 15(5), revised TEU. 327 See 2.5 below.
On the accountability of evaluation measures, see 2.5 below.
Action ([1997] OJ L 344/7). The issues selected have been mutual assistance, drug
rafficking, the supply ofinformation to Europol, the European arrest warrant, and financial crime.
National Parliaments ensure that the proposals and legislative initiatives submitted under
Chapters 4 and 5 comply with the principle of subsidiarity, in accordance with the
arrangements laid down by the Protocol on the application of the principles of subsidiand
proportionality.
be noted that this special role for national parliaments only relates to
rn(~asur(es concerning policing and criminal law. Article 69 is considered further
of the analysis of the legitimacy ofEU JHA measures below.327
Next, Article 70 TFEU permits the Council to adopt evaluation measures:
With,,"t prejudice to Articles 258, 259 and 260, the Council may, on a proposal from the
Commrssion, adopt measures laying down the arrangements whereby Member States,
collaboration with the Commission, conduct objective and impartial evaluation of
implementation of the Union policies referred to in this Title by Member States'
authorities, in particular in order to facilitate full application of the principle of mutual
recognmon. The European Parliament and national Parliaments shall be informed of the
and results of the evaluation.
adopted by the European Council in Tampere in 1999 are reflected in the measadopted
subsequently. These guidelines are adopted by 'consensus' in the
European Council, although the Treaty does not expressly define this concept.F"
is no specific role in JHA matters for the President of the European
V'JUJlH.Jl.r,
326
Article 68 TFEU differs from the prior role ofthe European Council
that there is a specific reference to operational cooperation, but surely the
European Council would not expect to play a major role in as regards, for
the planning of operations by the relevant EU agencies (Europol,
Eurojust, and Frontex, the EU border agency), since EU leaders obviously lack
specialist knowledge for this, and their involvement could compromise the
operations.
Article 69 refers to a specific rule for national parliaments as regards scrutiny
legislation:
Institutional Framework50
318 See, for instance, Art 2(a) ofDir 2003/86 on family reunion ([2003] OJ L 251/12).
319 See ch 8 below.
320 On the composition and functioning ofthe European Council, see the revised Art 15
321 See the 'Tampere programme', adopted in 1999, as well as the Hague programme dUlJp""l!J
2004 ([2005] OJ C 53/1). 322 [2010]
323 Art 15(1), revised TEU.
324 See the discussion of the implementation of the Tampere and Hague programmes in
chs 3-12, and the discussion substance ofthe Stockholm programme in s 2.3 ofchs 3-12.
policy objectives adopted in 1999 (see the discussion ofArticle 68 TFEU below).
Finally, the principle ofsolidarity is referred to in more detail in Article 80
and EU legislation already frequently defined third-country nationals as
itly including stateless persons.I'"
The first part of the third paragraph (up to the words, 'prevent and
crime') is similar to the prior Article 61(e) EC, and the remainder ofthe paragraph
is a succinct version of the prior Article 29 TEU, with the addition of a
reference to mutual recognition in criminal matters but without a reference
any specific crimes other than racism and xenophobia. However, mutual
nition in criminal matters is in any event referred to as the basis ofEU cr:iminal
law in Article 82(1) TFEU.
The fourth paragraph is more specific than the prior Article 61(c) EC,
ring now expressly to the principle of 'access to justice' and to specific prmciples
applicable to civil law. However, it should be noted that those principles are
out again (in the same words) in Article 81(1) TFEU, and an express power
adopt measures on 'effective access to [civil] justice' is set out in Article
TFEU.
319
Moreover, the reference to civil law is not exhaustive ('in particular')
and so the reference to 'access to justice' should also be understood as applvinz
criminal law (as regards legal aid, for instance) and to administrative proceedinzs
relating to immigration and asylum law.
Article 68 TFEU sets out a special role for the European Council in
area:
The European Council shall define the strategic guidelines for legislative and operational
planning within the area of freedom, security and justice.
This new provision largely reflects the role which the European Council
EU institution made up of Member States' heads of state or government)
already playing as regards JHA law before the Treaty ofLisbon.320 In partl,cuJar'
the European Council had already agreed multi-annual guidelines for
cooperation.>" This provision has already been applied to adopt the 'Stockholm
programme', the latest multi-yearJHA action programme, in December
Although the European Council is not a legislative body.I" such gUld(~1111eS
certainly politically highly significant since they are taken into account by
EU iristitutioris.V" They might also be legally relevant when interpreting
legislation, and as noted above, some aspects of the original JHA guideuru
53
the latter point, see 2.5 below. . h d h Committee as a procedural matter, pursuant
OJ L 52/50. The Councd estabhs e. t e d t d by a simple majority with no optTFEU
which meant that the Deciston was a op e . '.
Ccocec!ures ossible. There was no role for the EP or the ComnllsslO
n.
"' p . . 341l Arts 2 and 3(2) COSI DeclSlon.
4 COSI DeclSlon. ."
, • . 342 See 2 5 below. .
5,COSIDeclSlon. , " fA t dam and theArt36 CommIttee
'These were the Art KA Committee before the Treaty 0 ms er ,
T f
Amsterdam named after the relevant Treaty artIcles.
reaty 0 : " ([?009] OJ L 325/35).
Art 19 of the Council s rules of procedure -53/09 16 Dec 2009. The Art 36 Committee
'1d 16070/09 16 Nov 2009 and 176. , . . . ' I
Counci ocs . ' . ' f olice and'udicial cooperation m cnmma
,.,,,,.,, r-a 11"ct the 'Coordinatmg Comrruttee m the area 0 P C J I loc 17611/09 15 Dec 2009).
but still uses its prior French acronym ('CATS'; see ounci c . ,
Overview of the institutional framework
1
· 337
ir 1 Id the role of national par laments.
he ci vented entrre y, as wou d b
e clrcum
l
n the evaluation of specific legislative measures shoul e
Siluilarly, any ru es 0
'ncluded within the relevant legislation. . h . ' f1 . . rovides for t e creatlOn 0
Article 71 TFEU, another new Treaty provlSlon, p
stJLncling committee on internal secunty:
. ithin the Council in order to ensure that operastandl.ng
commtttce shall be set up w d h d within the Union.
. I. rity is promoted an strengt ene
cooperation on interna secu . . di fthe action of Member
Wi';",~"r . di t Article 240 it shall faCIlItate COOl' matron 0 d
preJu ICe 0 . . ' entatives of the Union bodies, offices an agencompetent
authOrItIes. Repres . di f thi committee. The European
d a be involved m the procee mgs 0 s .
concerne m y I P I' t shall be kept informed of the proceedmgs.
Parli'lm'ent and nationa ar iamen s
. (k 'COSI' based on the French acronym) was established
commIttee nown as , f Li b 338
Council shortly after the date ofentry into force ofthe Treat~0 IS to:~ve
. . bli hi COSI makes clear that the committee oes no ,
DeCIsIOn es~~ a~o;~fegislative measures, and does not conduct operations,33~
. . nd strengthen coordination of operatIOna
rather 'shall faCIlItate, promote a t ' the field ofinternal
of the authorities of the Member States competen m. _
and 'shall also evaluate the general direction and efficiency of opera
, . ' 1 identif ossible shortcomings or faIlures and adopt
cooperatIOn; It shal y P dd them' 340 It includes representa"Jl:of,n;lte
concrete recommendatlons to a ress . . . ' .
If . . 341 As a CouncIl committee It IS
f
J
H A agencies involved m operatIOns.
rom . 347
to the rules on access to documents. - h T
c. following the entry into force of t e reaty
.s no longer any relerence, .
1 . . t hich assisted the Council's diSCUSSIOns as
to the prevIOUScommit ees w · f h .
the legislative (and to some extent the operational) as
pect:;34:
:a~r:~~~:~
pillar 343 However the CounCIl (or, more preCIsely, Corep )d he Iezi 1
. ' . d i k ar s t e egls athe
committee that previously assiste ItS wor as reg . .
. . 11 1 with the 'StrategIc CommIttee
of policing and cnmma aw, a ong ki
Frontiers and Asylum' and a number of other JHA wor mg
Institutional Framework
acquis, and the implementation of commitments concerning terrorisrn.P"
suggestion by the Commission for a more elaborate system of evaluating
policies did not attract sufficient interest in the Council.331 As for ensuring
correct implementation of Framework Decisions in national law, Member
agreed on a largely standard approach to assessing Member States' irnplementa..
tion of Framework Decisions. All but one Framework Decision specified
Member States should forward information on their implementation of
measure to the Commission and Council by or soon after the
tion deadline. Subsequently, the Commission and Council draw up reports
national implementation, and the Council was supposed to assess that
mentation by a specified date.332Applying this procedure, there have been a
number of Commission reports and Council conclusions; the Council
its procedure in 2005 to hold a full debate among ministers concerning
Commission's assertions about non-implementation of the Framework LJt~Cl;SlUll
on the European Arrest Warrant.P'' However, the Council stopped drawing
conclusions on national implementation ofFramework Decisions after this
The Commission has also produced reports concerning the national application
of the Decision establishing Eurojust, and of the Convention on fraud
the EU's financial interests.P" However, there was no ongoing evaluation
application of most Decisions or Conventions, or of the Schengen Information
System, or the Schengen rules on policing, criminal law, or border control,
and irregular immigration.
The Stockholm programme calls for regular evaluation of EU JHA
cies, starting with judicial cooperation in criminal matters but including
procedures. It also calls upon the Commission to make proposals to implement
Article 70 TFEU.335
The action plan on implementation of the Stockholm
gramme provides for a communication on evaluation ofJHA policies in 2010
proposals concerning evaluation of anti-corruption policy (2012) and criminal
justice cooperation (2011).336
As compared to other Treaty provisions, it is clear that evaluation measure
may not concern the substanceofEU JHA policy, in the absence of any
conferring such competence. The point is obviously important because "tlhpl·,,,i,
the EP's participation in the legislative process as regards the substance
330 Joint Action ([2000] OJ L 191/8); Schengen Executive Committee Decision 0~LV~'>H"·<;.
(98) 26 def ([2000] OJ L 239/138); and Decision ([2002] OJ L 349/1). The Commission
proposals to amend the Schengen evaluation mechanism before the entry into force of the
Lisbon: COM (2009) 102 and COM (2009) 105, both 4 Mar 2009. The latter proposal
the entry into force of the Treaty of Lisbon, and the other has not been agreed or adopted;
has the legal base ofArt 74 TFEU (see COM (2009) 665, 2 Dec 2009), on which see below.
331 COM (2006) 332, 28 June 2006.
m The exception is the second Framework Decision on counterfeiting currency,
no reference to a report or assessment ([2001] OJ L 329/3).
333 For more detail, see 9.5.2 below. 334 See respectively 11.9 and 10.5 below.
335 See n 322 above, point 1.2.5. 336 COM (2010) 171, 20Apr 2010.
52
53
the latter point, see 2.5 below. . h d h Committee as a procedural matter, pursuant
OJ L 52/50. The Councd estabhs e. t e d t d by a simple majority with no optTFEU
which meant that the Deciston was a op e . '.
Ccocec!ures ossible. There was no role for the EP or the ComnllsslO
n.
"' p . . 341l Arts 2 and 3(2) COSI DeclSlon.
4 COSI DeclSlon. ."
, • . 342 See 2 5 below. .
5,COSIDeclSlon. , " fA t dam and theArt36 CommIttee
'These were the Art KA Committee before the Treaty 0 ms er ,
T f
Amsterdam named after the relevant Treaty artIcles.
reaty 0 : " ([?009] OJ L 325/35).
Art 19 of the Council s rules of procedure -53/09 16 Dec 2009. The Art 36 Committee
'1d 16070/09 16 Nov 2009 and 176. , . . . ' I
Counci ocs . ' . ' f olice and'udicial cooperation m cnmma
,.,,,,.,, r-a 11"ct the 'Coordinatmg Comrruttee m the area 0 P C J I loc 17611/09 15 Dec 2009).
but still uses its prior French acronym ('CATS'; see ounci c . ,
Overview of the institutional framework
1
· 337
ir 1 Id the role of national par laments.
he ci vented entrre y, as wou d b
e clrcum
l
n the evaluation of specific legislative measures shoul e
Siluilarly, any ru es 0
'ncluded within the relevant legislation. . h . ' f1 . . rovides for t e creatlOn 0
Article 71 TFEU, another new Treaty provlSlon, p
stJLncling committee on internal secunty:
. ithin the Council in order to ensure that operastandl.ng
commtttce shall be set up w d h d within the Union.
. I. rity is promoted an strengt ene
cooperation on interna secu . . di fthe action of Member
Wi';",~"r . di t Article 240 it shall faCIlItate COOl' matron 0 d
preJu ICe 0 . . ' entatives of the Union bodies, offices an agencompetent
authOrItIes. Repres . di f thi committee. The European
d a be involved m the procee mgs 0 s .
concerne m y I P I' t shall be kept informed of the proceedmgs.
Parli'lm'ent and nationa ar iamen s
. (k 'COSI' based on the French acronym) was established
commIttee nown as , f Li b 338
Council shortly after the date ofentry into force ofthe Treat~0 IS to:~ve
. . bli hi COSI makes clear that the committee oes no ,
DeCIsIOn es~~ a~o;~fegislative measures, and does not conduct operations,33~
. . nd strengthen coordination of operatIOna
rather 'shall faCIlItate, promote a t ' the field ofinternal
of the authorities of the Member States competen m. _
and 'shall also evaluate the general direction and efficiency of opera
, . ' 1 identif ossible shortcomings or faIlures and adopt
cooperatIOn; It shal y P dd them' 340 It includes representa"Jl:of,n;lte
concrete recommendatlons to a ress . . . ' .
If . . 341 As a CouncIl committee It IS
f
J
H A agencies involved m operatIOns.
rom . 347
to the rules on access to documents. - h T
c. following the entry into force of t e reaty
.s no longer any relerence, .
1 . . t hich assisted the Council's diSCUSSIOns as
to the prevIOUScommit ees w · f h .
the legislative (and to some extent the operational) as
pect:;34:
:a~r:~~~:~
pillar 343 However the CounCIl (or, more preCIsely, Corep )d he Iezi 1
. ' . d i k ar s t e egls athe
committee that previously assiste ItS wor as reg . .
. . 11 1 with the 'StrategIc CommIttee
of policing and cnmma aw, a ong ki
Frontiers and Asylum' and a number of other JHA wor mg
Institutional Framework
acquis, and the implementation of commitments concerning terrorisrn.P"
suggestion by the Commission for a more elaborate system of evaluating
policies did not attract sufficient interest in the Council.331 As for ensuring
correct implementation of Framework Decisions in national law, Member
agreed on a largely standard approach to assessing Member States' irnplementa..
tion of Framework Decisions. All but one Framework Decision specified
Member States should forward information on their implementation of
measure to the Commission and Council by or soon after the
tion deadline. Subsequently, the Commission and Council draw up reports
national implementation, and the Council was supposed to assess that
mentation by a specified date.332Applying this procedure, there have been a
number of Commission reports and Council conclusions; the Council
its procedure in 2005 to hold a full debate among ministers concerning
Commission's assertions about non-implementation of the Framework LJt~Cl;SlUll
on the European Arrest Warrant.P'' However, the Council stopped drawing
conclusions on national implementation ofFramework Decisions after this
The Commission has also produced reports concerning the national application
of the Decision establishing Eurojust, and of the Convention on fraud
the EU's financial interests.P" However, there was no ongoing evaluation
application of most Decisions or Conventions, or of the Schengen Information
System, or the Schengen rules on policing, criminal law, or border control,
and irregular immigration.
The Stockholm programme calls for regular evaluation of EU JHA
cies, starting with judicial cooperation in criminal matters but including
procedures. It also calls upon the Commission to make proposals to implement
Article 70 TFEU.335
The action plan on implementation of the Stockholm
gramme provides for a communication on evaluation ofJHA policies in 2010
proposals concerning evaluation of anti-corruption policy (2012) and criminal
justice cooperation (2011).336
As compared to other Treaty provisions, it is clear that evaluation measure
may not concern the substanceofEU JHA policy, in the absence of any
conferring such competence. The point is obviously important because "tlhpl·,,,i,
the EP's participation in the legislative process as regards the substance
330 Joint Action ([2000] OJ L 191/8); Schengen Executive Committee Decision 0~LV~'>H"·<;.
(98) 26 def ([2000] OJ L 239/138); and Decision ([2002] OJ L 349/1). The Commission
proposals to amend the Schengen evaluation mechanism before the entry into force of the
Lisbon: COM (2009) 102 and COM (2009) 105, both 4 Mar 2009. The latter proposal
the entry into force of the Treaty of Lisbon, and the other has not been agreed or adopted;
has the legal base ofArt 74 TFEU (see COM (2009) 665, 2 Dec 2009), on which see below.
331 COM (2006) 332, 28 June 2006.
m The exception is the second Framework Decision on counterfeiting currency,
no reference to a report or assessment ([2001] OJ L 329/3).
333 For more detail, see 9.5.2 below. 334 See respectively 11.9 and 10.5 below.
335 See n 322 above, point 1.2.5. 336 COM (2010) 171, 20Apr 2010.
52
349 See more specifically 3.2.4, 11.2.4, and 12.2.4 below.
On Art 276 TFEU, see further 2.2.2.2 above. 3S1 See Art 79(5) TFEU.
3S2 See Art 67(3) TFEU, discussed further above.
55Overview of the institutional framework
to the extent that the Treaty confers express powers to act on such agencies.v"
This interpretation is also consistent with the limitation on the Court's jurisdiction
pursuant to Article 276 TFEU.350
In particular, the express restriction upon Europol taking 'coercive measures'
set out in Article 88 TFEU should be understood as a specific application of this
general rule. However, Article 72 TFEU should not be understood to preclude
the adoption of measures pursuant to Article 86 TFEU which confer upon the
European Public Prosecutor those powers which the Treaty expressly provides
for, or such further judicial or prosecutorial powers as would be clearly necessary
to carry out the Prosecutor's functions. Fundamentally, this exclusion should
not be seen as a restriction on the subject matter which the EU is competent to
address, but rather as a rule regarding the division of powers between the EU
the Member States as regards the execution ofoperational measures necessary
implement EU rules. Where the drafters of the Treaty of Lisbon wished to
the Union's competence regarding specific JHA issues, they have done
expressly.t'" and so further specific restrictions on competence over specific
matter cannot be inferred from a general rule like Article 72.
Next, to what extent does Article 73 TFEU limit the EU's competence? This
does not as such exclude the EU from competence to adopt measures
concerning cooperation regarding national security. This is particularly obvious
comparing it to the Treaty Article which quite clearly reserves 'competo
Member States, such as Article 79(5) TFEU. Following the model of
79(5), if the drafters of Article 73 had wished to reserve national comnf>tf>rlCf>
over security services unambiguously, Article 73 could simply have
nrovided that, '[t]his Title shall not affect the competence of Member States to
organise between themselves .. .'. In any event, Article 73 does not impact upon
ability ofthe EU to regulate security services to the extent that they participate in
enforcement. Ifthe EU were precluded from regulating such matters, this would
the effectiveness of the EU to regulate law enforcement issues, given the
involvement of security agencies in law enforcement, and so such an exclusion
surely have to be provided for expressly. Furthermore, this interpretation
significantly undermine the accountability ofEU action in this area.
for the adoption of EU measures regulating internal security cooperation
Article 73 leaves it 'open' to Member States to cooperate on this matter, but
not expressly rule out the adoption ofEU measures on this issue. Nor does
cooperation fall outside the scope of the EU's JHA objectives of ensuring
level of security' by means of measures concerning police, judicial, 'and
competent authorities'.352
:'4
Institutional Framework
The next question is the extent of national co
secunty. This issue arises most bvi I' mpetence as regards internal
. 0 VIOUS Y In resp t fA' I
provIdes that '(t]his Title shall a: ec 0 rtrc e 72 TFEU, which
b not artect the exerCIse ofth ibi .
ent Upon Member States with d e responsI Ihties incum-
1 regar to the m .
the safeguarding of internal se itv' I c: aIlltenance oflaw and order and
. cun y. n tact th . . .
Illg of the previous Articles 64(1) EC d 3' IS proVIsIOn COpIes the wordd
an 3 TEU B t hi .regar s Article 73 TFEU who h h d . . u t IS ISsue also arises as
h · ' IC a no equival t' h .
t e TreatIes, and which provides that: en III t e prevIous versions
It shall be open to Member States to or anise be
slbJllty such forms of cOoperation a d di tween themselves and under their responth
n coor matron as th d
e competent departments oftheir ad '. . . ey eem appropriate between
security. mllllstratlOns responsIble for safeguarding national
Furthermore, the revised Article 4(2) TEU id
ProVI es that:
The Union shall respect the equality ofM b
natIOnal identities inherent in th . fi d em er States before the Treaties as well as
. I . ' err un amental stru t I' .
inc usrve of regional and I I If. . cures, po ItIcal and constit:utiorlal.
oca se -government.
It shall respect their essential State fu ti . .
rity of the State, maintaining law d ird IOns, mcludmg ensuring the territorial
ti I . an or er and safeguardi .
ICU ar, natIOnal security remain th I . . . ng natIOnal security. In
s e so e responsIbIlIty of each Member State
Only the requirement to respect Member S ' , ' . .
appeared expressly in the Tr ti 346 tates natIOnal Identities' prevlo11Slv
h ea res, and the Court f] .
touc ed upon the interpretatio f hi . . 0 ustice has only
d h not IS provision 347 Thi h
ue to t e exclusion of the Co ,. . di . IS may, owever,
. . urt s juris IctlOn as d hi
restnctIOn which was lift d b h regar s t IS provision
346-348 TFEU (previoust
y
ArYt' t
l
e 2T9r6eaty of Lisbon. Furthermore, ,
. IC es -298 EC) P 'd c.
tions relating to the arm t d d ' rOVI e ror specified
s ra e an natIOnal se . h
not substantively amended b th T . cunty; t ose provisions
l' d y e rearv of LIsbon d (
app le to policing and crimi I I ' an as noted above)
into force. ma aw matters as well after that Treaty
. To what extent do these provisions reser
FIrSt, Article 72 TFEU sh Id b . ve competence to Member
A . ou e Interpreted the
rtldes with identical word' Al h same way as the previous
preted by the Court of] tI?g. h
t
°b
ugh
these Articles have not yet been
us Ice t e est inte ' .
that the use of coercive m '. rpretatIOn IS that they contIrrrled
easures III order to enf
to the ]HA provisions of th T ' . orce measures adopted pUlrSllarlt
. e reaties IS left to the M b S
In particular as regards arrest detenri em er tares' authoritif~s.
therefore limited to suppo ti etentIOn, and the use of force. EU ag:enC1(~~
rung actions of national authorities
, except \dIIUOnlVl
349 See more specifically 3.2.4, 11.2.4, and 12.2.4 below.
On Art 276 TFEU, see further 2.2.2.2 above. 3S1 See Art 79(5) TFEU.
3S2 See Art 67(3) TFEU, discussed further above.
55Overview of the institutional framework
to the extent that the Treaty confers express powers to act on such agencies.v"
This interpretation is also consistent with the limitation on the Court's jurisdiction
pursuant to Article 276 TFEU.350
In particular, the express restriction upon Europol taking 'coercive measures'
set out in Article 88 TFEU should be understood as a specific application of this
general rule. However, Article 72 TFEU should not be understood to preclude
the adoption of measures pursuant to Article 86 TFEU which confer upon the
European Public Prosecutor those powers which the Treaty expressly provides
for, or such further judicial or prosecutorial powers as would be clearly necessary
to carry out the Prosecutor's functions. Fundamentally, this exclusion should
not be seen as a restriction on the subject matter which the EU is competent to
address, but rather as a rule regarding the division of powers between the EU
the Member States as regards the execution ofoperational measures necessary
implement EU rules. Where the drafters of the Treaty of Lisbon wished to
the Union's competence regarding specific JHA issues, they have done
expressly.t'" and so further specific restrictions on competence over specific
matter cannot be inferred from a general rule like Article 72.
Next, to what extent does Article 73 TFEU limit the EU's competence? This
does not as such exclude the EU from competence to adopt measures
concerning cooperation regarding national security. This is particularly obvious
comparing it to the Treaty Article which quite clearly reserves 'competo
Member States, such as Article 79(5) TFEU. Following the model of
79(5), if the drafters of Article 73 had wished to reserve national comnf>tf>rlCf>
over security services unambiguously, Article 73 could simply have
nrovided that, '[t]his Title shall not affect the competence of Member States to
organise between themselves .. .'. In any event, Article 73 does not impact upon
ability ofthe EU to regulate security services to the extent that they participate in
enforcement. Ifthe EU were precluded from regulating such matters, this would
the effectiveness of the EU to regulate law enforcement issues, given the
involvement of security agencies in law enforcement, and so such an exclusion
surely have to be provided for expressly. Furthermore, this interpretation
significantly undermine the accountability ofEU action in this area.
for the adoption of EU measures regulating internal security cooperation
Article 73 leaves it 'open' to Member States to cooperate on this matter, but
not expressly rule out the adoption ofEU measures on this issue. Nor does
cooperation fall outside the scope of the EU's JHA objectives of ensuring
level of security' by means of measures concerning police, judicial, 'and
competent authorities'.352
:'4
Institutional Framework
The next question is the extent of national co
secunty. This issue arises most bvi I' mpetence as regards internal
. 0 VIOUS Y In resp t fA' I
provIdes that '(t]his Title shall a: ec 0 rtrc e 72 TFEU, which
b not artect the exerCIse ofth ibi .
ent Upon Member States with d e responsI Ihties incum-
1 regar to the m .
the safeguarding of internal se itv' I c: aIlltenance oflaw and order and
. cun y. n tact th . . .
Illg of the previous Articles 64(1) EC d 3' IS proVIsIOn COpIes the wordd
an 3 TEU B t hi .regar s Article 73 TFEU who h h d . . u t IS ISsue also arises as
h · ' IC a no equival t' h .
t e TreatIes, and which provides that: en III t e prevIous versions
It shall be open to Member States to or anise be
slbJllty such forms of cOoperation a d di tween themselves and under their responth
n coor matron as th d
e competent departments oftheir ad '. . . ey eem appropriate between
security. mllllstratlOns responsIble for safeguarding national
Furthermore, the revised Article 4(2) TEU id
ProVI es that:
The Union shall respect the equality ofM b
natIOnal identities inherent in th . fi d em er States before the Treaties as well as
. I . ' err un amental stru t I' .
inc usrve of regional and I I If. . cures, po ItIcal and constit:utiorlal.
oca se -government.
It shall respect their essential State fu ti . .
rity of the State, maintaining law d ird IOns, mcludmg ensuring the territorial
ti I . an or er and safeguardi .
ICU ar, natIOnal security remain th I . . . ng natIOnal security. In
s e so e responsIbIlIty of each Member State
Only the requirement to respect Member S ' , ' . .
appeared expressly in the Tr ti 346 tates natIOnal Identities' prevlo11Slv
h ea res, and the Court f] .
touc ed upon the interpretatio f hi . . 0 ustice has only
d h not IS provision 347 Thi h
ue to t e exclusion of the Co ,. . di . IS may, owever,
. . urt s juris IctlOn as d hi
restnctIOn which was lift d b h regar s t IS provision
346-348 TFEU (previoust
y
ArYt' t
l
e 2T9r6eaty of Lisbon. Furthermore, ,
. IC es -298 EC) P 'd c.
tions relating to the arm t d d ' rOVI e ror specified
s ra e an natIOnal se . h
not substantively amended b th T . cunty; t ose provisions
l' d y e rearv of LIsbon d (
app le to policing and crimi I I ' an as noted above)
into force. ma aw matters as well after that Treaty
. To what extent do these provisions reser
FIrSt, Article 72 TFEU sh Id b . ve competence to Member
A . ou e Interpreted the
rtldes with identical word' Al h same way as the previous
preted by the Court of] tI?g. h
t
°b
ugh
these Articles have not yet been
us Ice t e est inte ' .
that the use of coercive m '. rpretatIOn IS that they contIrrrled
easures III order to enf
to the ]HA provisions of th T ' . orce measures adopted pUlrSllarlt
. e reaties IS left to the M b S
In particular as regards arrest detenri em er tares' authoritif~s.
therefore limited to suppo ti etentIOn, and the use of force. EU ag:enC1(~~
rung actions of national authorities
, except \dIIUOnlVl
353 It might be objected that where a Treaty rule is repeated, there must be some adchtlon:ll
legal meaning accorded to the second appearance of the rule. However, the drafters of the
of Lisbon were. apparently quite content to repeat several provisions of the Treaty purely for
sake of emphaSIS-as evidenced by Arts 4(1) TEU and the second sentence of Art 5(2) TEU,
Instance.
57Overview of the institutional framework
Art 76 TFEU, discussed further below. This rules out the prospect ofa Member States' initiaconcerning
administrative cooperation across the whole of Title V.
See further 2.4 of chs 3-12.
On the substance of EU anti-terrorist sanctions legislation and the litigation concerning its
application, see 12.4.5 below.
Reg 88112002, [2002] OJ L 139/9, as amended by Reg 56112003, [2003] OJ L 82/1.
Reg 258012001, [2001] OJ L 344179, which applied alongside a foreign policy measure
(Common Position 2001/931, [2001] OJ L 344/93).
those fields.":' These measures are adopted by a QMV in the Council after consultation
ofthe EP, and are not legislative. Because ofthe different decision-making
procedure, it is important to distinguish this provision from the substantive legal
bases in Title V which provide either for the ordinary legislative procedure or
unanimous voting in the Council. Given the limited wording of Article 74 and
the express provisions conferring competence as regards substantive law, Article
74 cannot be the legal base for any measure affecting substantive JHA law, for
instance concerning border checks; the substance or procedure relating to applications
for visas, asylum, or residence permits; the rules relating to civil jurisdiction
or civil procedure; the mutual recognition of criminal law decisions;
or the exchange of information between law enforcement authorities. Instead,
the Article is a legal base for measures concerning issues such as exchanges of
personnel or exchanges of general information (as distinct from the exchange of
information on specific individuals for law enforcement or immigration control
purposesj.t"
Next, Article 75 TFEU provides for the adoption of legislation on antiterrorist
sanctions. This is a new provision inserted by the Treaty of Lisbon, so
background first ofall needs to be explained.P" Before the entry into force of
Treaty ofLisbon, the EU adopted measures freezing the assets and income of
and groups who were believed to be terrorists but whose alleged activiwere
primarily outside the EU. One category of such groups and persons
those who were allegedly linked to al-Qaeda and the Taliban, and the EU
established a legal framework by means ofwhich it simply copied the lists ofsuch
and groups designated by a committee of the United Nations Security
, ..AJUJ,JLJ,.r. 357 The second category (subject to separate legislation) consisted ofthose
and groups which the EU institutions believed to be terrorists, but who
listed as terrorists on the basis that a 'competent authority' was investigating
prosecuting them for terrorist offences (the 'autonomous' list). 358
In both cases, the legal bases for the adoption of the relevant measures were
HJCJU~' 60,301, and 308 ofthe previous EC Treaty. Article 301 provided for the
adoption ofeconomic sanctions against third countries by QMV in Council after
Commission proposal, with no involvement of the EP, following the adoption
policy measure pursuant to Title V ofthe previous TEU. Article 60 of
previous BC Treaty applied the same procedure as regards financial sanctions
Institutional Framework56
The Council shall adopt measures to ensure administrative cooperation between
relevant departments of the Member States in the areas covered by this Title, as well
between those departments and the Commission. It shall act on a Commission proposal,
subject to Article 76, and after consulting the European Parliament.
This power previously existed before the Treaty of Lisbon as regards llYlmJgra__
tion, asylum, and civil law (see the prior Article 66 TEe), but was expanded
that Treaty to cover policing and criminal law as well, subject to the pOSSIbIlIty
that one-quarn-r of Member States are able to propose a measure in this area
Nevertheless, EU competence over the regulation of internal security agencies
appears to be ruled out by one of the TEU's general clauses on the relationship
between the EU and the Member States. As we have seen above, Article 4(2) TEU
states that a 'particular' rule regarding the EU's respect for 'essential state functions'
is that 'national security remains the sole responsibility of each Member State'.
It is hard to see how an EU power to regulate such matters could be exercised
without encroaching upon this 'sole responsibility'. Having said that, the general
rule in Article 4(2) TEU should not be understood, any more than the specific
rule in Article 73 TFEU, to exempt security agencies entirely from the scope of
EU law when they exercise law enforcement functions, as distinct from functions
relating to national security.
Finally, how should the broader requirement in Article 4(2) TEU of 'respect'
for essential state functions, 'including ... maintaining law and order and safeguarding
national security', be interpreted? Since the reference to 'maintaining
law and order' is identical to Article 72 TFEU in this respect, this part of
Article 4(2) adds no further limitation to the EU's powers.v" As for the reference
to 'safeguarding national security', it is only relevant to the extent that national
security is at issue, rather than internalsecurity. But even to the extent ofthe overlap
between the two provisions, the obligation to respect State functions as regards
national security as set out in Article 4(2) TEU is less far-reaching than the
requirement not to affect internal security responsibilities as set out in Article 72
TFEU. It must therefore be concluded that the general rule in the first sentence
of Article 4(2) TEU does not lay down any additional restriction on EU action
besides those spelt out in Article 72 TFEU as regards responsibilities for law
order and internal security, and in the second sentence of Article 4(2) TEU
regards the sole responsibility for national security.
Next, Article 74 TFEU provides for a power to adopt measures conCierrling
administrative cooperation:
353 It might be objected that where a Treaty rule is repeated, there must be some adchtlon:ll
legal meaning accorded to the second appearance of the rule. However, the drafters of the
of Lisbon were. apparently quite content to repeat several provisions of the Treaty purely for
sake of emphaSIS-as evidenced by Arts 4(1) TEU and the second sentence of Art 5(2) TEU,
Instance.
57Overview of the institutional framework
Art 76 TFEU, discussed further below. This rules out the prospect ofa Member States' initiaconcerning
administrative cooperation across the whole of Title V.
See further 2.4 of chs 3-12.
On the substance of EU anti-terrorist sanctions legislation and the litigation concerning its
application, see 12.4.5 below.
Reg 88112002, [2002] OJ L 139/9, as amended by Reg 56112003, [2003] OJ L 82/1.
Reg 258012001, [2001] OJ L 344179, which applied alongside a foreign policy measure
(Common Position 2001/931, [2001] OJ L 344/93).
those fields.":' These measures are adopted by a QMV in the Council after consultation
ofthe EP, and are not legislative. Because ofthe different decision-making
procedure, it is important to distinguish this provision from the substantive legal
bases in Title V which provide either for the ordinary legislative procedure or
unanimous voting in the Council. Given the limited wording of Article 74 and
the express provisions conferring competence as regards substantive law, Article
74 cannot be the legal base for any measure affecting substantive JHA law, for
instance concerning border checks; the substance or procedure relating to applications
for visas, asylum, or residence permits; the rules relating to civil jurisdiction
or civil procedure; the mutual recognition of criminal law decisions;
or the exchange of information between law enforcement authorities. Instead,
the Article is a legal base for measures concerning issues such as exchanges of
personnel or exchanges of general information (as distinct from the exchange of
information on specific individuals for law enforcement or immigration control
purposesj.t"
Next, Article 75 TFEU provides for the adoption of legislation on antiterrorist
sanctions. This is a new provision inserted by the Treaty of Lisbon, so
background first ofall needs to be explained.P" Before the entry into force of
Treaty ofLisbon, the EU adopted measures freezing the assets and income of
and groups who were believed to be terrorists but whose alleged activiwere
primarily outside the EU. One category of such groups and persons
those who were allegedly linked to al-Qaeda and the Taliban, and the EU
established a legal framework by means ofwhich it simply copied the lists ofsuch
and groups designated by a committee of the United Nations Security
, ..AJUJ,JLJ,.r. 357 The second category (subject to separate legislation) consisted ofthose
and groups which the EU institutions believed to be terrorists, but who
listed as terrorists on the basis that a 'competent authority' was investigating
prosecuting them for terrorist offences (the 'autonomous' list). 358
In both cases, the legal bases for the adoption of the relevant measures were
HJCJU~' 60,301, and 308 ofthe previous EC Treaty. Article 301 provided for the
adoption ofeconomic sanctions against third countries by QMV in Council after
Commission proposal, with no involvement of the EP, following the adoption
policy measure pursuant to Title V ofthe previous TEU. Article 60 of
previous BC Treaty applied the same procedure as regards financial sanctions
Institutional Framework56
The Council shall adopt measures to ensure administrative cooperation between
relevant departments of the Member States in the areas covered by this Title, as well
between those departments and the Commission. It shall act on a Commission proposal,
subject to Article 76, and after consulting the European Parliament.
This power previously existed before the Treaty of Lisbon as regards llYlmJgra__
tion, asylum, and civil law (see the prior Article 66 TEe), but was expanded
that Treaty to cover policing and criminal law as well, subject to the pOSSIbIlIty
that one-quarn-r of Member States are able to propose a measure in this area
Nevertheless, EU competence over the regulation of internal security agencies
appears to be ruled out by one of the TEU's general clauses on the relationship
between the EU and the Member States. As we have seen above, Article 4(2) TEU
states that a 'particular' rule regarding the EU's respect for 'essential state functions'
is that 'national security remains the sole responsibility of each Member State'.
It is hard to see how an EU power to regulate such matters could be exercised
without encroaching upon this 'sole responsibility'. Having said that, the general
rule in Article 4(2) TEU should not be understood, any more than the specific
rule in Article 73 TFEU, to exempt security agencies entirely from the scope of
EU law when they exercise law enforcement functions, as distinct from functions
relating to national security.
Finally, how should the broader requirement in Article 4(2) TEU of 'respect'
for essential state functions, 'including ... maintaining law and order and safeguarding
national security', be interpreted? Since the reference to 'maintaining
law and order' is identical to Article 72 TFEU in this respect, this part of
Article 4(2) adds no further limitation to the EU's powers.v" As for the reference
to 'safeguarding national security', it is only relevant to the extent that national
security is at issue, rather than internalsecurity. But even to the extent ofthe overlap
between the two provisions, the obligation to respect State functions as regards
national security as set out in Article 4(2) TEU is less far-reaching than the
requirement not to affect internal security responsibilities as set out in Article 72
TFEU. It must therefore be concluded that the general rule in the first sentence
of Article 4(2) TEU does not lay down any additional restriction on EU action
besides those spelt out in Article 72 TFEU as regards responsibilities for law
order and internal security, and in the second sentence of Article 4(2) TEU
regards the sole responsibility for national security.
Next, Article 74 TFEU provides for a power to adopt measures conCierrling
administrative cooperation:
59Overview of the institutional framework
In the alternative, Articles 75 and 215 should be the joint legal base for the
adoption of anti-terrorist measures. While there are differences between these
legal bases, in that Article 215 requires a joint proposal from the High
.Representative and the prior adoption of a foreign policy measure, the latter
was equally true as regards the joint use of Articles 60, 301, and 308 EC
As compared to Article 215 TFEU, the basic measures to be adopted pursuant
to Article 75 TFEU are legislative acts which must be adopted by the use of the
ordinary legislative procedure, with no requirement of the adoption of a prior
foreign policy act or for ajoint proposal by the High Representative. There is also
an opt-out from Article 75 measures for the UK and Denmark (but not Ireland),
although the UK intends to opt in to such measures.Y" No opt-out applies to
Article 215 TFED.
Which of these provisions applies to the adoption of anti-terrorist measures?
Unsurprisingly the EP argues that Article 75 applies.I'" but the Council and
Commission argue that Article 215 applies. Shortly after the entry into force of
the Treaty ofLisbon, the Council adopted a measure amending the basic framework
for sanctions against al-Qeada and the Taliban on the basis of Article 215
TFEU,365 and the EP has challenged this before the Court ofJustice, primarily
on the basis that this measure has the wrong 'legal base'.366 The best view on
this issue is that Article 75 is a lex specialis as regards anti-terrorist sanctions, and
applies instead ofArticle 215 TFEU in the absence ofany exclusion from or limiof
the scope of the JHA provision. Sanctions against any alleged terrorists
contribute to the objectives set out in Article 67 TFEU (as Article 75 requires),
that Article 67 does not limit itself to actions carried out on EU Member
territories and that the TEU provides that the protection of the EU's
external objectives also takes place by means of the external aspects of the EU's
internal policies.l'" Since all anti-terrorist measures are linked to some extent
Resolutions of the United Nations Security Council, the Council's approach
mean that Article 75 is deprived of all meaning. Article 215 could still
used as the legal base for the adoption of sanctions measures not concerning
See 2.2.5.1 and 2.2.5.2 below.
Use of Art 75 also entails scrutiny powers for national parliaments (see 2.5 below), whereas
215 does not. 365 Reg 1265/2009, [2009] OJ L 346/42.
Case C-130/1O EP v Council, pending. 367 Art 21, revised TED.
define a framework for administrative measures with regard to capital movements and
payments, such as the freezing offunds, financial assets or economic gains belonging to,
or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt measures to implement
the framework referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal
safeguards.
Institutional Framework
Where necessary to achieve the objectives set out in Article 67, as regards preventing
combating terrorism and related activities, the European Parliament and the Council,
ing by means of regulations in accordance with the ordinary legislative procedure,
359 Art 60(2) EC set out a specific rule relating to financial sanctions by Member States, but
was no equivalent rule in the prior Art 301 EC.
360 See Art 4 ofCommon Position 2001/931 (n 358 above). The application ofthis provision
at issue in Case C-355/04 P SECr [2007] ECR 1-1657.
361 Joined Cases C-402!05 P and C-415/05 P Kadi and Al Barakaat [2008]ECR 1-6351,
163-178,211-216, and 222-236. 362 On this position, see Art 18, revised
58
against third countries.P? Finally, Article 308 ofthe previous EC Treaty was used
as an additional legal base so that the EU sanctions measures could be extended to
persons and groups not connected with a third state's government; this provision
was subject to unanimous voting in the Council and consultation ofthe EP, with
no requirement of a prior foreign policy measure. No EU sanctions measures
were adopted against persons or groups who were believed to be terrorists but
whose activity was mainly internalto the EU, because it was believed (correctly or
not) that the EC and EU had no power to adopt sanctions in that case. Following
the entry into force of the Treaty of Lisbon, the correctness of that view is now
moot. However, the EU nevertheless designated some such groups and persons as
'terrorists' on its autonomous list, for the (sole) purpose of cooperating as regards
'enquiries and proceedings' in respect of such persons within the scope of the
third pillar (as it then was).360 The legal bases used for these measures were upheld
by the Court ofJustice, which ruled that Articles 60 and 301 EC could be used
as regards the material scope of sanctions against al-Qaeda, but not as regards
the personal scope of such sanctions, because those Treaty articles only provided
competence to adopt sanctions measures as regards entire countries or 'the rulers
of such a country and also individuals and entities associated with or controlled,
directly or indirectly, by them'. Article 308 EC gave the EC the power to extend
the scope of those sanctions to persons not connected to a governing H'"UJ.H..,
because the failure to adopt uniform rules in this regard could impact upon
operation of the common market (which was at the time a requirement for
use ofArticle 308).361
The Treaty ofLisbon replaced Articles 60 and 301 EC with Article 215
which applies to both economic and financial sanctions (without any special
relating to national financial sanctions) and also now permits the EU to
such sanctions 'against natural or legal persons and groups or non-State
The decision-making process remains the same as before, with the addition
a requirement that the EU's High Representative for foreign policy jointly
pose the measure concemed.r" Article 215 also requires the adoption of
safeguards' relating to sanctions measures; measures based on this Article are
legislative acts.
But the Treaty ofLisbon also added Article 75 TFEU, which provides
59Overview of the institutional framework
In the alternative, Articles 75 and 215 should be the joint legal base for the
adoption of anti-terrorist measures. While there are differences between these
legal bases, in that Article 215 requires a joint proposal from the High
.Representative and the prior adoption of a foreign policy measure, the latter
was equally true as regards the joint use of Articles 60, 301, and 308 EC
As compared to Article 215 TFEU, the basic measures to be adopted pursuant
to Article 75 TFEU are legislative acts which must be adopted by the use of the
ordinary legislative procedure, with no requirement of the adoption of a prior
foreign policy act or for ajoint proposal by the High Representative. There is also
an opt-out from Article 75 measures for the UK and Denmark (but not Ireland),
although the UK intends to opt in to such measures.Y" No opt-out applies to
Article 215 TFED.
Which of these provisions applies to the adoption of anti-terrorist measures?
Unsurprisingly the EP argues that Article 75 applies.I'" but the Council and
Commission argue that Article 215 applies. Shortly after the entry into force of
the Treaty ofLisbon, the Council adopted a measure amending the basic framework
for sanctions against al-Qeada and the Taliban on the basis of Article 215
TFEU,365 and the EP has challenged this before the Court ofJustice, primarily
on the basis that this measure has the wrong 'legal base'.366 The best view on
this issue is that Article 75 is a lex specialis as regards anti-terrorist sanctions, and
applies instead ofArticle 215 TFEU in the absence ofany exclusion from or limiof
the scope of the JHA provision. Sanctions against any alleged terrorists
contribute to the objectives set out in Article 67 TFEU (as Article 75 requires),
that Article 67 does not limit itself to actions carried out on EU Member
territories and that the TEU provides that the protection of the EU's
external objectives also takes place by means of the external aspects of the EU's
internal policies.l'" Since all anti-terrorist measures are linked to some extent
Resolutions of the United Nations Security Council, the Council's approach
mean that Article 75 is deprived of all meaning. Article 215 could still
used as the legal base for the adoption of sanctions measures not concerning
See 2.2.5.1 and 2.2.5.2 below.
Use of Art 75 also entails scrutiny powers for national parliaments (see 2.5 below), whereas
215 does not. 365 Reg 1265/2009, [2009] OJ L 346/42.
Case C-130/1O EP v Council, pending. 367 Art 21, revised TED.
define a framework for administrative measures with regard to capital movements and
payments, such as the freezing offunds, financial assets or economic gains belonging to,
or owned or held by, natural or legal persons, groups or non-State entities.
The Council, on a proposal from the Commission, shall adopt measures to implement
the framework referred to in the first paragraph.
The acts referred to in this Article shall include necessary provisions on legal
safeguards.
Institutional Framework
Where necessary to achieve the objectives set out in Article 67, as regards preventing
combating terrorism and related activities, the European Parliament and the Council,
ing by means of regulations in accordance with the ordinary legislative procedure,
359 Art 60(2) EC set out a specific rule relating to financial sanctions by Member States, but
was no equivalent rule in the prior Art 301 EC.
360 See Art 4 ofCommon Position 2001/931 (n 358 above). The application ofthis provision
at issue in Case C-355/04 P SECr [2007] ECR 1-1657.
361 Joined Cases C-402!05 P and C-415/05 P Kadi and Al Barakaat [2008]ECR 1-6351,
163-178,211-216, and 222-236. 362 On this position, see Art 18, revised
58
against third countries.P? Finally, Article 308 ofthe previous EC Treaty was used
as an additional legal base so that the EU sanctions measures could be extended to
persons and groups not connected with a third state's government; this provision
was subject to unanimous voting in the Council and consultation ofthe EP, with
no requirement of a prior foreign policy measure. No EU sanctions measures
were adopted against persons or groups who were believed to be terrorists but
whose activity was mainly internalto the EU, because it was believed (correctly or
not) that the EC and EU had no power to adopt sanctions in that case. Following
the entry into force of the Treaty of Lisbon, the correctness of that view is now
moot. However, the EU nevertheless designated some such groups and persons as
'terrorists' on its autonomous list, for the (sole) purpose of cooperating as regards
'enquiries and proceedings' in respect of such persons within the scope of the
third pillar (as it then was).360 The legal bases used for these measures were upheld
by the Court ofJustice, which ruled that Articles 60 and 301 EC could be used
as regards the material scope of sanctions against al-Qaeda, but not as regards
the personal scope of such sanctions, because those Treaty articles only provided
competence to adopt sanctions measures as regards entire countries or 'the rulers
of such a country and also individuals and entities associated with or controlled,
directly or indirectly, by them'. Article 308 EC gave the EC the power to extend
the scope of those sanctions to persons not connected to a governing H'"UJ.H..,
because the failure to adopt uniform rules in this regard could impact upon
operation of the common market (which was at the time a requirement for
use ofArticle 308).361
The Treaty ofLisbon replaced Articles 60 and 301 EC with Article 215
which applies to both economic and financial sanctions (without any special
relating to national financial sanctions) and also now permits the EU to
such sanctions 'against natural or legal persons and groups or non-State
The decision-making process remains the same as before, with the addition
a requirement that the EU's High Representative for foreign policy jointly
pose the measure concemed.r" Article 215 also requires the adoption of
safeguards' relating to sanctions measures; measures based on this Article are
legislative acts.
But the Treaty ofLisbon also added Article 75 TFEU, which provides
61Overview of the institutional framework
293 TFEU. It is assumed in practice, at least by the Commission, that the former rule gives
11 discretion to the Commission to withdrawits proposals.
Arts 294(15) and 238(2) and (3)(b) TFEU, as regards the ordinary legislative procedure
voting rules respectively.
there is nothing to stop (a) Member State(s) which proposed an initiative bringing an
annul it after its adoption.
For more detailed analysis ofthis issue, see S Peers, 'Finally "Fit for Purpose?" The Treaty of
n and the End of the Third Pillar Legal Order' (2008) 27 YEL 47.
A complete list ofbinding pre-existing third pillar acts which were in force at the date ofentry
rce ofthe Treaty ofLisbon, as well as subsequent amendments and proposed amendments to
appears in Appendix II. 379 See 2.2.5.1.4.
2.2.3.1.
Transitional rules377
transitional rules in the Treaty of Lisbon relating to the abolition of the
third pillar appear in a special transitional Protocol, which governs a
number ofissues concerning the transition from the previous rules in the Treaties
the new rules introduced by the Treaty of Lisbon. There are three different
relating to the former third pillar addressed by the Protocol: the jurisdicof
the Court ofJustice over third pillar measures adopted before the entry
force ofthe Treaty ofLisbon ('pre-existing third pillar measures') for a fivetransitional
period (ending 1 December 2014); the legal effect of those same
.measures (notsubject to a transitional period); and the possibility ofthe UK to opt
of those measures at the end of the five-year transitional period.t" The first
o issues are considered here, while the third issue is considered further below,
with the other opt-outs for the UK on JHA matters.?" As noted above,
are no transitional restrictions on the full extension ofthe Court ofJustice's
jurisdiction as regards immigration, asylum, and civil law. 380
of all, the transitional provision on the Court ofJustice states that the
of the EU institutions, namely the role of the Commission in infringeactions
and the jurisdiction of the Court ofJustice, remains the same for
.re-existing third pillar measures as before the Treaty ofLisbon for the five-year
States must normally vote unanimously to amend Commission proposals.F" The
absence of a reference to Member State initiatives suggests that these rules do
not apply to such initiatives. In other cases, the TFEU sets out special rules for
Member State initiatives.?" However, although Member States cannot withdraw
or amend their initiatives, there is nothing in the Treaty to prevent (a) Member
State(s) voting against initiatives that it (or they) have made, or, where relevant,
pulling an 'emergency brake' concerning those initiatives.376 While it might seem
odd that a Member State would vote against its own initiative, it is conceivable
that a Member State might change its mind due to a change of government or
in reaction to public discussion ofthe proposal, or because the proposal has been
amended during the decision-making process and the Member State in question
disagrees with such changes.
Institutional Framework60
before the entry into force of the Treaty of Lisbon; nevertheless, the Court
Justice did not object to it in the Kadi judgment. Nor did the Court object in that
judgment to the combined use ofa legal base requiring consultation ofthe EP and
a legal base giving the EP no role, so there is no reason to object to a combined
legal base requiring the ordinary legislative procedure and the non-consultation
ofthe EP. 368
The difference in the legal bases as regards the role (and non-role)
the High Representative is surely analogous, and no more problematic than,
difference as regards the role (and non-role) of the EP.369
However, since Articles 75 and 215 only apply to sanctions, they cannot be
merely to list alleged terrorists or terrorist groups for the mere purpose
ing judicial and police cooperation. The correct legal bases for that process
the Treaty of Lisbon are Articles 82 and 87 TFEU.37O
The Council has
made a legal error on this point, when it updated the list of external terrorist
groups and persons who were subject to both sanctions and enhancedjudicial
police cooperation after the entry into force ofthe Treaty ofLisbon, by means
the foreign policy powers conferred by Article 29, revised TEU.371
Finally, Article 76 TFEU provides for a continued possibility for Member
States to propose measures concerning policing and criminal law:
The acts referred to in Chapters 4 and 5, together with the measures referred
Article 74 which ensure administrative cooperation in the areas covered by these Chapters,
shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
This retains a power enjoyed (and often exercised) by Member States
Treaty of Lisbon.?" However, as compared to the prior third pillar, Merrlbe'r
States cannot propose measures individually, but can make initiatives
(at least) one-quarter of Member States propose them. So far, there have
three such initiatives?" The question arises whether Member States can
draw or amend such initiatives, either collectively or individually. The
provides that the Commission can always amend its proposals, and that Men:lber
368 Note that the Court ofJustice has accepted joint legal bases which combine consultation
the EP with its pre-Lisbon co-decision rights: see for instance, Case C-166/07 EP v Council
ECR 1-7135.
.169 In fact, it is less problematic than the combination of unanimity and QMV in the
which the Court accepted without comment in both EP v Council (ibid) and Kadi.
.170 On the scope of Art 87 generally, see 12.2.4 below.
371 Decision 200911004, [2009] OJ L 346/58.
372 See the prior Art 34 TEU, discussed in 2.2.2.2 above.
m These are initiatives for Directives on: the right to interpretation and translation in
work ofcriminal proceedings ([2010] OJ C 69/1); a European protection order
and a European investigation order ([2010] OJ C 165/22). Note that the Commission
peting proposal on the first subject: COM (2010) 82, 9 Mar 2010.
61Overview of the institutional framework
293 TFEU. It is assumed in practice, at least by the Commission, that the former rule gives
11 discretion to the Commission to withdrawits proposals.
Arts 294(15) and 238(2) and (3)(b) TFEU, as regards the ordinary legislative procedure
voting rules respectively.
there is nothing to stop (a) Member State(s) which proposed an initiative bringing an
annul it after its adoption.
For more detailed analysis ofthis issue, see S Peers, 'Finally "Fit for Purpose?" The Treaty of
n and the End of the Third Pillar Legal Order' (2008) 27 YEL 47.
A complete list ofbinding pre-existing third pillar acts which were in force at the date ofentry
rce ofthe Treaty ofLisbon, as well as subsequent amendments and proposed amendments to
appears in Appendix II. 379 See 2.2.5.1.4.
2.2.3.1.
Transitional rules377
transitional rules in the Treaty of Lisbon relating to the abolition of the
third pillar appear in a special transitional Protocol, which governs a
number ofissues concerning the transition from the previous rules in the Treaties
the new rules introduced by the Treaty of Lisbon. There are three different
relating to the former third pillar addressed by the Protocol: the jurisdicof
the Court ofJustice over third pillar measures adopted before the entry
force ofthe Treaty ofLisbon ('pre-existing third pillar measures') for a fivetransitional
period (ending 1 December 2014); the legal effect of those same
.measures (notsubject to a transitional period); and the possibility ofthe UK to opt
of those measures at the end of the five-year transitional period.t" The first
o issues are considered here, while the third issue is considered further below,
with the other opt-outs for the UK on JHA matters.?" As noted above,
are no transitional restrictions on the full extension ofthe Court ofJustice's
jurisdiction as regards immigration, asylum, and civil law. 380
of all, the transitional provision on the Court ofJustice states that the
of the EU institutions, namely the role of the Commission in infringeactions
and the jurisdiction of the Court ofJustice, remains the same for
.re-existing third pillar measures as before the Treaty ofLisbon for the five-year
States must normally vote unanimously to amend Commission proposals.F" The
absence of a reference to Member State initiatives suggests that these rules do
not apply to such initiatives. In other cases, the TFEU sets out special rules for
Member State initiatives.?" However, although Member States cannot withdraw
or amend their initiatives, there is nothing in the Treaty to prevent (a) Member
State(s) voting against initiatives that it (or they) have made, or, where relevant,
pulling an 'emergency brake' concerning those initiatives.376 While it might seem
odd that a Member State would vote against its own initiative, it is conceivable
that a Member State might change its mind due to a change of government or
in reaction to public discussion ofthe proposal, or because the proposal has been
amended during the decision-making process and the Member State in question
disagrees with such changes.
Institutional Framework60
before the entry into force of the Treaty of Lisbon; nevertheless, the Court
Justice did not object to it in the Kadi judgment. Nor did the Court object in that
judgment to the combined use ofa legal base requiring consultation ofthe EP and
a legal base giving the EP no role, so there is no reason to object to a combined
legal base requiring the ordinary legislative procedure and the non-consultation
ofthe EP. 368
The difference in the legal bases as regards the role (and non-role)
the High Representative is surely analogous, and no more problematic than,
difference as regards the role (and non-role) of the EP.369
However, since Articles 75 and 215 only apply to sanctions, they cannot be
merely to list alleged terrorists or terrorist groups for the mere purpose
ing judicial and police cooperation. The correct legal bases for that process
the Treaty of Lisbon are Articles 82 and 87 TFEU.37O
The Council has
made a legal error on this point, when it updated the list of external terrorist
groups and persons who were subject to both sanctions and enhancedjudicial
police cooperation after the entry into force ofthe Treaty ofLisbon, by means
the foreign policy powers conferred by Article 29, revised TEU.371
Finally, Article 76 TFEU provides for a continued possibility for Member
States to propose measures concerning policing and criminal law:
The acts referred to in Chapters 4 and 5, together with the measures referred
Article 74 which ensure administrative cooperation in the areas covered by these Chapters,
shall be adopted:
(a) on a proposal from the Commission, or
(b) on the initiative of a quarter of the Member States.
This retains a power enjoyed (and often exercised) by Member States
Treaty of Lisbon.?" However, as compared to the prior third pillar, Merrlbe'r
States cannot propose measures individually, but can make initiatives
(at least) one-quarter of Member States propose them. So far, there have
three such initiatives?" The question arises whether Member States can
draw or amend such initiatives, either collectively or individually. The
provides that the Commission can always amend its proposals, and that Men:lber
368 Note that the Court ofJustice has accepted joint legal bases which combine consultation
the EP with its pre-Lisbon co-decision rights: see for instance, Case C-166/07 EP v Council
ECR 1-7135.
.169 In fact, it is less problematic than the combination of unanimity and QMV in the
which the Court accepted without comment in both EP v Council (ibid) and Kadi.
.170 On the scope of Art 87 generally, see 12.2.4 below.
371 Decision 200911004, [2009] OJ L 346/58.
372 See the prior Art 34 TEU, discussed in 2.2.2.2 above.
m These are initiatives for Directives on: the right to interpretation and translation in
work ofcriminal proceedings ([2010] OJ C 69/1); a European protection order
and a European investigation order ([2010] OJ C 165/22). Note that the Commission
peting proposal on the first subject: COM (2010) 82, 9 Mar 2010.
63Overview of the institutional framework
respectively 2.2.5.1,2.2.5.2,2.2.5.5, and 2.2.3.4, all below. 388 Art 10(3).
9. This provision also applies to pre-existing CFSP acts, but they are not considered
here. 390 On the legal effect of pre-existing third pillar measures, see 2.2.2.2 above.
amendment of pre-existing third pillar acts within the transitional period also has an
the scope of the UK's option to disapply all pre-existing acts at the end of that period:
below. 392 [2010] OJ C 115, point 1.2.10.
(2010) 171,20 Apr 2010.
Stockholm programme also makes specific reference to the transformation
pre-cxistmg third pillar acts, stating that the Action Plan to implement the
'should include a proposal for a timetable for the transformation of
m:,trunlellts with a new legal basis'.392 However, the Commission's Action Plan
contain a specific timetable to this end, although implicitly a significant
of pre-existing measures would be replaced or amended within the
transitional period."?
practice, in the first nine months after the Treaty of Lisbon entered into
Commission tabled two proposals which would repeal prior third pillar
Conference invites the European Parliament, the Council and the Commission,
their respective powers, to seek to adopt, in appropriate cases and as far as possible
the five-year period referred to in Article 10(3) of the Protocol on transitional
pr':lVISlOns, legal acts amending or replacing the acts referred to in Article 10(1) of that
restriction in territorial scope ofthe amended act, pursuant to the special opt-out
applying to the UK, Ireland, and Denmark, the general rules on enhanced
and the special voting rules applicable to aspects of EU policing
criminal law, which could lead to a 'fast-track' application of the enhanced
rules.Y' In any event, whether a pre-existing third pillar act is
amenuec during the transitional period or not, the Court's normal jurisdiction
apply to all those acts at the end of the transitional period.P'"
for the special rules on the legal effect ofpre-existing third pillar measures,
transitional protocol provides that the legal effect ofacts adopted on the basis
TEU before the Treaty ofLisbon entered into force 'shall be preserved until
acts are repealed, annulled or amended in implementation of the Treaties';
also applies to 'agreements concluded between Member States on the basis
TEU.389
The latter provision covers third pillar Conventions. There is no
limit on the application of this provision, which at the very least preserves
of direct effect of pre-existing Framework Decisions and Decisions, and
preserves other restrictions which arguably exist as regards the legal effect of
pre-existing third pillar measures as compared to other EU law.390
much rests on the amendment of pre-existing third pillar acts,
particularly within the five-year transitional period applicable to the jurisdiction
Court ofJustice.391 The Final Act of the Treaty of Lisbon contains a dec"",L'''"~U
specifically addressing this issue:
Institutional Framework62
transitional period, including where a Member State accepted the jurisdiction
of the Court ofJustice over references for a preliminary ruling pursuant to the
previous rules.?" Presumably this refers not only to the rules on the Court's
jurisdiction applicable to measures adopted between 1999 and 2009, but also
to the jurisdictional rules applicable to measures adopted before 1999 (limited
jurisdiction for Conventions, no jurisdiction for other acts), to the extent that
the pre-Amsterdam measures are still in force. 382
It should be recalled that the
pre-existing third pillar measures include the immigration provisions of the SIS,
except to the extent that they have been amended since 1999, until SIS If becomes
operational.
What does this mean in practice? As noted above.P'" for the third pillar measures
adopted between 1999 and 2009: nineteen Member States accepted the
Court's jurisdiction for preliminary rulings; no infringement actions were pos __
sible; there were special rules on the Court's jurisdiction as regards dispute settlement
between Member States and between Member States and the Commission;
and there were special rules on annulment actions (which were moot by early
2010 due to the time limit on bringing annulment actionsj.Y" So the limitation
on the Court's jurisdiction is particularly relevant as regards those Member States
that did not opt in to the Court's jurisdiction as regards preliminary
and as regards the exclusion of the Commission's ability to bring infringement
proceedings. Although one interpretation ofthe transitional protocol would
gest that Member States which did not opt in to the Court's preliminary
jurisdiction as regards pre-existing third pillar measures before the entry
force ofthe Treaty ofLisbon could not then do so during the transitional
the better interpretation is that they are still able to do so, as this would
tate the underlying purpose ofthe Protocol of providing for a smooth transition
to the new jurisdictional rules set out in the Treaty ofLisbon.385
The transitional protocol contains an important qualification upon the
tinued limitations upon the Court's jurisdiction. Once a pre-existing third
act is amended, the Court's new jurisdiction will apply as regards those Member
States for which the amended act is applicable.P" This takes account ofthe r- ~oo _
381 Art 10(1), transitional protocol. All references in this subsection are to the transitional
col, unless otherwise indicated. On the substance of the previous rules on the Court's jurisdiction,
see 2.2.2.2 above.
382 On the substance ofthe pre-Amsterdam rules on the Court's jurisdiction, see 2.2.1
383 See 2.2.2.2.
384 It should be noted that the validity of a third pillar act can still be challenged through
national courts without any time limit, by means of a reference pursuant to the previous Art
TEU or (after the end ofthe transitional period) Art 267 TFEU.
385 In any event, the relevant wording of Art 10(1)-'including where they have been
under Article 35(2) of the said Treaty on European Union'-does not unambiguously require
the relevant jurisdiction must 'have been accepted' before the entry intb force of the
Lisbon. See also, by analogy, Case C-296/08 Santesteban Goicoechea [2008] ECR 1-6307.
386 Art 10(2).
63Overview of the institutional framework
respectively 2.2.5.1,2.2.5.2,2.2.5.5, and 2.2.3.4, all below. 388 Art 10(3).
9. This provision also applies to pre-existing CFSP acts, but they are not considered
here. 390 On the legal effect of pre-existing third pillar measures, see 2.2.2.2 above.
amendment of pre-existing third pillar acts within the transitional period also has an
the scope of the UK's option to disapply all pre-existing acts at the end of that period:
below. 392 [2010] OJ C 115, point 1.2.10.
(2010) 171,20 Apr 2010.
Stockholm programme also makes specific reference to the transformation
pre-cxistmg third pillar acts, stating that the Action Plan to implement the
'should include a proposal for a timetable for the transformation of
m:,trunlellts with a new legal basis'.392 However, the Commission's Action Plan
contain a specific timetable to this end, although implicitly a significant
of pre-existing measures would be replaced or amended within the
transitional period."?
practice, in the first nine months after the Treaty of Lisbon entered into
Commission tabled two proposals which would repeal prior third pillar
Conference invites the European Parliament, the Council and the Commission,
their respective powers, to seek to adopt, in appropriate cases and as far as possible
the five-year period referred to in Article 10(3) of the Protocol on transitional
pr':lVISlOns, legal acts amending or replacing the acts referred to in Article 10(1) of that
restriction in territorial scope ofthe amended act, pursuant to the special opt-out
applying to the UK, Ireland, and Denmark, the general rules on enhanced
and the special voting rules applicable to aspects of EU policing
criminal law, which could lead to a 'fast-track' application of the enhanced
rules.Y' In any event, whether a pre-existing third pillar act is
amenuec during the transitional period or not, the Court's normal jurisdiction
apply to all those acts at the end of the transitional period.P'"
for the special rules on the legal effect ofpre-existing third pillar measures,
transitional protocol provides that the legal effect ofacts adopted on the basis
TEU before the Treaty ofLisbon entered into force 'shall be preserved until
acts are repealed, annulled or amended in implementation of the Treaties';
also applies to 'agreements concluded between Member States on the basis
TEU.389
The latter provision covers third pillar Conventions. There is no
limit on the application of this provision, which at the very least preserves
of direct effect of pre-existing Framework Decisions and Decisions, and
preserves other restrictions which arguably exist as regards the legal effect of
pre-existing third pillar measures as compared to other EU law.390
much rests on the amendment of pre-existing third pillar acts,
particularly within the five-year transitional period applicable to the jurisdiction
Court ofJustice.391 The Final Act of the Treaty of Lisbon contains a dec"",L'''"~U
specifically addressing this issue:
Institutional Framework62
transitional period, including where a Member State accepted the jurisdiction
of the Court ofJustice over references for a preliminary ruling pursuant to the
previous rules.?" Presumably this refers not only to the rules on the Court's
jurisdiction applicable to measures adopted between 1999 and 2009, but also
to the jurisdictional rules applicable to measures adopted before 1999 (limited
jurisdiction for Conventions, no jurisdiction for other acts), to the extent that
the pre-Amsterdam measures are still in force. 382
It should be recalled that the
pre-existing third pillar measures include the immigration provisions of the SIS,
except to the extent that they have been amended since 1999, until SIS If becomes
operational.
What does this mean in practice? As noted above.P'" for the third pillar measures
adopted between 1999 and 2009: nineteen Member States accepted the
Court's jurisdiction for preliminary rulings; no infringement actions were pos __
sible; there were special rules on the Court's jurisdiction as regards dispute settlement
between Member States and between Member States and the Commission;
and there were special rules on annulment actions (which were moot by early
2010 due to the time limit on bringing annulment actionsj.Y" So the limitation
on the Court's jurisdiction is particularly relevant as regards those Member States
that did not opt in to the Court's jurisdiction as regards preliminary
and as regards the exclusion of the Commission's ability to bring infringement
proceedings. Although one interpretation ofthe transitional protocol would
gest that Member States which did not opt in to the Court's preliminary
jurisdiction as regards pre-existing third pillar measures before the entry
force ofthe Treaty ofLisbon could not then do so during the transitional
the better interpretation is that they are still able to do so, as this would
tate the underlying purpose ofthe Protocol of providing for a smooth transition
to the new jurisdictional rules set out in the Treaty ofLisbon.385
The transitional protocol contains an important qualification upon the
tinued limitations upon the Court's jurisdiction. Once a pre-existing third
act is amended, the Court's new jurisdiction will apply as regards those Member
States for which the amended act is applicable.P" This takes account ofthe r- ~oo _
381 Art 10(1), transitional protocol. All references in this subsection are to the transitional
col, unless otherwise indicated. On the substance of the previous rules on the Court's jurisdiction,
see 2.2.2.2 above.
382 On the substance ofthe pre-Amsterdam rules on the Court's jurisdiction, see 2.2.1
383 See 2.2.2.2.
384 It should be noted that the validity of a third pillar act can still be challenged through
national courts without any time limit, by means of a reference pursuant to the previous Art
TEU or (after the end ofthe transitional period) Art 267 TFEU.
385 In any event, the relevant wording of Art 10(1)-'including where they have been
under Article 35(2) of the said Treaty on European Union'-does not unambiguously require
the relevant jurisdiction must 'have been accepted' before the entry intb force of the
Lisbon. See also, by analogy, Case C-296/08 Santesteban Goicoechea [2008] ECR 1-6307.
386 Art 10(2).
65Overview of the institutional framework
1. The emergency breke'»
Treaty rule which provides for this procedure as regards criminal law proor
initiatives reads as follows:
Arts 82(3) and 83(3) TFEU, referring to Arts 82(2) and 83(1) and (2) TFEU. However, where
of 'Community criminal law' measures pursuant to Art 83(2) TFEU requires unani(for
instance, as regards tax or racism), the emergency brake procedure would implicitly
since it can only be used to suspend the ordinary legislative procedure (Art 83(3) TFEU),
entails QMV. 399 Arts 86 and 87(3) TFEU.
Notably Arts 82(1) (cross-border mutual recognition measures), 85 (Eurojust), 87(2) (other
of police cooperation), 88 (Europol), and 89 (cross-border police operations). See further
11.2.4, and 12.2.4 below. 401 For the details ofthose rules, see 2.2.5.5 below.
Art 76 TFEU, discussed in 2.2.3.2 above.
discussion is adapted from S Peers, 'EU Criminal Law and the Treaty of Lisbon' (2008)
qqDL,,,",; v 507 at 522-529.
a member of the Council considers that a draft directive as referred to in [the
provision] would affect fundamental aspects ofits criminal justice system, it may
criminal procedure and substantive criminal law, 398 while the pseudo-veto applies
to decisions regarding the European Public Prosecutor and operational police
cooperation (except for measures building upon the Schengen acquis).399 In each
it will be necessary to distinguish between the legal bases which are subject
these special rules, and those legal bases which are not."? Both ofthese special
procedures could lead to a discussion of a draft proposal or initiative at the level
European Council (the EU leaders) and in both cases, one possible outcome
a 'fast-track' approval for a group ofMember States to adopt the relevant measwithout
the participation of other Member States (the concept of 'enhanced
circumventing the substantive or procedural requirements which
normally apply before enhanced cooperation could be authorized.'?'
But there are differences between the two procedures, which will therefore
considered in turn. In particular, a veto is distinct from an emergency brake
because there are no limitations of the grounds on which a Member State could
a veto, whereas an emergency brake can only be pulled on specified
groundls: and even ifa emergency brake could be challenged or overridden, a veto
Moreover, the pseudo-veto would trigger enhanced cooperation in a posiway-ie
a group of Member States wanting the adoption of a proposal would
the issue to the European Council-whereas the emergency brake would
enhanced cooperation in a negative way, because it would be invoked by a
Member State objecting to a measure. Also, the Member States invoking
nSI~l1lc1O-VI~toprocess would have comparative 'safety in numbers'.
either case, it should be recalled that as few as seven Member States could
a criminal law or policing proposal pursuant to the Treaty ofLisbon proviso
in such a case those Member States would only have to find two more allies
the adoption of the measure by means of enhanced cooperation.t'"
Institutional Framework64
394 These were proposals for Directives on sexual offences regarding children (COM (2010)
29 Mar 2010) and trafficking in persons (COM (2010) 95, 29 Mar 2010), which would replace
Framework Decisions on the same subjects (respectively [2004] OJ L 13/44 and [2002] OJ L
The Council agreed on the trafficking proposal in June 2010, but, at the time ofwriting, still has
agree the text with the EP (Council doc 10845/10, 10June 2010).
395 This was a proposal for a Regulation (COM (2010) 15, 29 Jan 2010), amending the
Decision on migration from the first-generation to the second-generation SIS as regards
and criminal law ([2008] OJ L 299/43). The Regulation was adopted as Reg 542/2010, [2010]
155/23.
396 Initiative for a Directive establishing a European investigation order ([2010] OJ C
which would repeal the Framework Decision establishing the European Evidence Warrant
OJ L 350/72) and replace the corresponding provisions ofthe EU Convention on Mutual Assistance
([2000] OJ C 197/1). its Protocol ([2001] OJ C 326/1), and the Schengen Convention
OJ L 239).
397 This question is also relevant as regards the opt-ours ofthe UK, Ireland, and possibly in
Denmark from JHA matters, since special rules apply if they opt out of an amendment
which they are already bound by. See 2.2.5.1 and 2.2.5.2 below.
acts (one ofwhich was already agreed),394 and one proposal which would amend
a prior third pillar act (this proposal was subsequently adoptedi.?" A group of
Member States tabled an initiative to repeal a prior third pillar act and 'replace'
the corresponding provisions of several others.?"
A crucial question as regards the transitional protocol is the definition of an
'amendment' to a pre-existing third pillar act."? There is no de minimis rule,
so it would seem that even a minor amendment to a pre-existing third pillar act
would trigger the application of the new rules on the Court's jurisdiction and
the legal effect to all the measure concerned. It makes sense that where there are
measures implementing a parent act, only an amendment to the parent act would
trigger the new rules concerned, which would then apply to the entirety of the
parent act and all implementing measures as an ensemble, because the implementing
measures depend on the parent act for their validity. In order to give the protocol
its full effect, the new rules on legal effect and Court jurisdiction should apply to
a pre-existing third pillar measure as soon as an amending act enters into force,
rather than the date ofapplicability or the deadline for Member States to apply the
amending act. For the same reasons, the provisions ofthe Schengen acquis allocated
to the previous third pillar should be treated as a single act for the purposes ofthe
protocol; but these provisions must be severed from the provisions of that acquis
which were allocated to the EC legal order in 1999 (ie immigration measures),
since the latter provisions are outside the scope of the transitional protocol.
2.2.3.4. Special decision-making rules
As noted above, in order to assuage some Member States' concerns about
loss of sovereignty in vital areas relating to criminal law and policing, the
provisions in the Treaty of Lisbon contain two special decision-making
one known as the 'emergency brake' and the other referred to in this book
the 'pseudo-veto'. The emergency brake applies to decisions regarding domestic