[ARTICLE 61]

FIGHTING CROSS-BORDER CRIME:

EU CO-DECISION, QMV, AND ECJ JURISDICTION TO BE EXTENDED

INTO AREA OF POLICE AND JUDICIAL COOPERATION<= /o:p>

[ARTICLE 61]

AMENDMENT TO: Treaty of Lisbon amending the Treaty on European Union and t= he Treaty establishing the European Community (Lisbon, 13 December 2007)<= /span>

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Policy Area: Treaty on the Functioning of the European Union, Part Three Policies and Internal Actions of the Union, Titl= e IV – Area of Freedom, security and Justice, Chapter 1 General Provisions, Article 61

Amendment:

Clause= 2, page 1, line 12, after ‘excluding’ insert –

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‘= ;(i) Article 2, paragraph 64, replacement Chapter 1 and Articles 61 to 61I TEC (TFEU) general provisions relating to an area of freedom, security and justice; and

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(ii)’.

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Lisb= on Treaty: =

“= ;AREA OF FREEDOM, SECURITY AND JUSTICE;

63) A Title IV, with the heading "AREA OF FREEDOM, SECURITY AND JUSTICE", shall replace the Title IV on visas, asylum, immigration, and other policies related to free movement of persons.

64) Article 61 shall be replaced by the following Chapter 1and Articles 61 to 61 I. Article 61 shall also replace the current Article= 29 of the Treaty on European Union.

ARTICLE 61

1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Me= mber States.

2. It shall ensure the absence of internal border contro= ls for persons and shall frame a common policy on asylum, immigration and exte= rnal border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals.

3. The Union shall endeavour= to ensure a high level of security through measures to prevent and combat crim= e, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of 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 of judicial and extrajudicial decisions in civil matters.”= ;

Consolidated Treaty Article(s):

“Art= icle 61

In order to establish progressively an area of freedom, security and justice, the Council shall adopt:

(a) within a period of five y= ears after the entry into force of the Treaty of Amsterdam, measures aimed at ensuring the free movement of persons in accordance with Article 14, in conjunction with directly related flanking measures with respect to external border controls, asylum and immigration, in accordance with the provisions = of Article 62(2) and (3) and Article 63(1)(a) and

(2)(a), a= nd measures to prevent and combat crime in accordance with the provisions of A= rticle 31(e) of the Treaty on European Union;

(b) other= measures in the fields of asylum, immigration and safeguarding the rights of nationals of third countries, in accordance with the provisions of Article = 63;

(d) appro= priate measures to encourage and strengthen administrative cooperation, as provided for in Article 66;

(e) measu= res in the field of police and judicial cooperation in criminal matters aimed a= t a high level of security by preventing and combating crime within the Union in accordance with the provisions of the Trea= ty on European Union.”

“Article 29 TEU

Without prejudice to the powe= rs of the European Community, the Union's objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action among the Member States in the fields of police and judicial cooperation in criminal = matters and by preventing and combating racism and xenophobia.

That objective shall be achie= ved by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences aga= inst children, illicit drug trafficking and illicit arms trafficking, corruption= and fraud, through:

— closer cooperation between police forces, customs authorities and other competent authorities = in the Member States, both directly and through the European Police Office (Europol), in accordance with the provisions of Articles 30 and 32,

- closer cooperation between judicial and other competent authorities of the Member States including cooperation through the European Judicial Cooperation Unit (‘Eurojust’), in accordance with the provisions o= f Articles 31 and 32,

— approximation, where necessary, of rules on criminal matters in the Member States, in accordance with the provisions of Article 31(e).”

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Expl= anation:

This is a massive change. The Lisbon Treaty will have several major implications for police and judic= ial cooperation in criminal matters as co-decision, qualified majority voting a= nd the ECJ’s jurisdiction will be extended t= o this area. The present Title IV of the TEC “Visas, Asylum, Immigration and Other Policies related to Free Movement of Persons” and present Title VI of= TEU “Police and Judicial Cooperation in Criminal Matters” has been = replaced with Title IV “Area of Freedom, security and Justice.” W= ith the Treaty of Amsterdam, “visas, asylum, immigration” were transferred from the intergovernmental to the EC pillar, becoming subject t= o EU decision-making procedures and the scrutiny of the European Court of Justic= e. “Police and Judicial Cooperation in Criminal Matters” (third pillar) are presently subject to unanimity and theref= ore the UK has the right of veto. The Lisbon Treaty will abolish the Maastricht Treaty pillar structure and move “Police and Judicial Cooperation in Criminal Matters” to the Treaty on the functioning of the European Unio= n (the existing EC Treaty). The new title ‘Area of Freedom, Security and Justice’ brings together the presently dispersed JHA policies under one heading. The Lisbon Treaty will have se= veral major implications for police and judicial cooperation in criminal matters as co-decision, qualified majority voting and the ECJ’s jurisdiction will be extended to this are= a. The ‘Community method’ is extended to police and judicial cooperati= on in criminal matters.

The Lisbon Treaty facilitates the Union to <= span style=3D'mso-bidi-font-weight:bold'>develop its own Union action and polici= es concerning security and justice with the ECJ ensuring that the common area of “Freedom, Security and Justice” is not undermined. The Lisbon Treaty transfers increased powers to the EU institutions, in the are= a of security and justice. QMV at the Council of Ministers and co-decision (ordinary legislative proce= dure) will be the rule. Hence, the European Parliament will have a stronger and m= ore influential role. In 1= 997, the Treaty of Amsterdam incorporated a large part of the former third pilla= r into the EC Treaty. Consequently, the ECJ's powers concerning Title IV (Visas, Asylum, Immigration, judicial cooperation in ci= vil matters) were established as equivalent to its powers for upholding and interpreting other Community law areas. Nevertheless, its preliminary rulin= gs on jurisdiction concerning these matters, according to Article 68 EC, is restricted to national courts from which there is no judicial remedy. The Lisbon Treaty repeals Article 68 TEC. It is clear t= hat the ECJ will make sure that the common area of “Freedom, Security and Justice” is not undermined.

The rigid EU institutions, under the Treaty provisions, will not take into account the unique nature of British common = law. The new Article 61 (1) is similar to present Article 61 although with a stronger wording “The Union shall constitute an area of freedom, secu= rity and justice …” rather than “In order to establish progressively an area of freedom, security and justice, the Council shall a= dopt …”. Furthermore, the Lisbon Treaty a= dds the need to respect “fundamental rights and the different legal systems and traditions of= the Member States.” The European Union institutions will not take into account the special nature of British common law.

It becomes clear that those Member States exposed to an influx of asylum seekers and illegal immigrants will be unabl= e to be assisted by the European Union. Although a common = policy on asylum and immigration are already on the way, the new Article 61 (2) ex= pressly calls for “a common policy on asylum, immigration and external border control” and introduces a new requirement for “solidarity betwe= en Member States.”

It is stated that there will be a sharing of bur= dens and costs between the Member States. This comes at time when the European P= arliament and the Commission have been calling for greater solidarity between Member States.

The UK has been surrendering the sovereign power to control its own borders to the= EU through the signing of the existing Treaties. = Lisbon also states that the Union “shall ensure the absence of internal b= order controls for persons.” The UK under the protocols attach= ed to the Amsterdam Treaty is already unable to maintain its border controls. The UK is not bound by the Scheng= en acquis but is allowed to opt in to some of it. According to the Protocol on the position of the United Kingdom and Ireland to the Treaty of Amsterdam, the <= st1:place w:st=3D"on">UK does not take part in the adoption of measures under Title IV (visas, asylum, immigration) or are they bound in any way by them. How= ever, the UK may notify the Council of its wish to take part in the adoption and applica= tion of a measure and it is also allowed to opt-in to a measure after it has been adopted. Nevertheless, the British Gover= nment has opted into several immigration and asylum measures rather than staying = out. Therefore, t= he UK has = been losing its sovereign power to control its own borders to the EU throughout = the existing Treaties.

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Article 61 (3) whi= ch states that “The Union shall endeavour to ensure a high level of security through measures to prevent and combat crim= e, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and= , if necessary, through the approximation of criminal laws” is similar to present Article 29 TEU. However = these matters are presently intergovernmental but under the Lisbon Treaty, they w= ill be subject to the “community method.”<= /p>

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Since this Article demands that the UK<= /st1:place> mutually recognise judicial and extrajudicial decisions in civil matters, it is implied that there could be potential risks to British citize= ns accused of crimes who will have fewer rights. The Lisbon Treaty introduces a new requirement in Article 61 (4) for the Union to “f= acilitate access to justice, in particular through the principle of mutual recognitio= n of judicial and extrajudicial decisions in civil matters.” The principle of mutual recognition is the keystone of judicial cooperation in both civil and criminal matters within the Union. The Lisbon Treaty enhances mutual recognition of judicial decisions and judgments which will be respected and enforced throughout the Union. However in some Member States the accused do not have access to proper advice and can be prevented from conducting an effective defence. Therefore, there are risks to British citizens accused of crimes of having fewer rights.

The UK, it is said, has the right to choose whether to take part in JHA legislation, although it remain= s debatable if it is a ‘free choice’ at all - once it has opted in, the UK is s= ubject to the Commission powers of enforcement and to ECJ jurisdiction. The Scheng= en Protocol – the Protocol on the Position of the UK in respect to the Area of Freedom, Security and Justice – is amended by the Lisbon Treaty. Ther= e is already a Protocol on Transitional Provisions with respect to acts of the U= nion in the field of police cooperation and judicial cooperation in criminal mat= ters which has been adopted before the Treaty of Lisbon has entered into force, = with special provisions for the UK. Although it remains debatable if it is a ‘free choice’, the UK has = the right to choose whether to take part in JHA legislation. Nevertheless, once opting in, UK is subject to the Commission powers of enforcement and to ECJ jurisdiction.= The Protocols on the UK<= /st1:place> position will be discussed further.