Article 4:[Evaluation mechanisms]
Without prejudice to Articles [226 to 228] of this Treaty, the Council may adopt arrangements whereby Member States, in collaboration with the Commission, conduct objective and impartial evaluation of the implementation of the Union policies referred to in this Title by Member States' authorities. The European Parliament, as well as national parliaments, shall be informed of the content and results of the evaluation.
Explanatory note
"Draft Article based on an important recommendation by the Working Group designed to resolve the problem of inadequate monitoring of implementation of Union policy in this area (see final report, C I, page 21):
"First, that mechanisms of "mutual evaluation" or "peer review", as practised successfully over recent years (….) should be encouraged and applied more widely …. The Group would see merit in an explicit mention in the new Treaty of this technique of mutual evaluation, which is to be implemented flexibly with the participation of the Commission through procedures guaranteeing objectivity and independence. In addition, the "peer review" reports should be supplied to the European Parliament and to national parliaments. Second, as for the legal obligations of the Member States resulting from Union law, the Working Group believes that the Commission should fully play its role as Treaty guardian and that it should be competent to introduce infringement proceedings (Article 226 TEC) before the European Court of Justice, also in the area of the current "Third Pillar".""
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COMMENTARY
26. This is a new Treaty Article, establishing
an 'objective and impartial' evaluation of implementation of EU
policies by Member States' authorities. The concept of mutual
evaluation first appeared in the 1997 Council Action Plan on Organised
Crime.[20]
Recommendation 15 called for the establishment, following the
model of the Financial Action Task Force (FATF)[21],
of a mutual evaluation mechanism for the implementation in Member
States of the relevant international criminal law instruments.
This led to the adoption of a Third Pillar Joint Action establishing
such an evaluation mechanism.[22]
27. This mechanism is now proposed to be 'constitutionalised'.
It could be applied not just to the implementation of international
instruments related to organised crime, but more broadly to the
implementation of any EU Freedom, Security and Justice policy.
The Article envisages the adoption of "arrangements".
The organisation and impact of evaluation exercises need to be
further defined though this could be a matter for secondary legislation.
Consideration will need to be given to how such evaluation will
be conducted, how standards will be set and decisions reached.
It is also not clear whether the evaluation will have any real
'teeth'. What, if any, sanctions would there be for a Member State
that does not meet the standards? Article 4 is without prejudice
to Articles 226-228 TEC (infringement actions before the ECJ).
It is not clear however whether the procedure under these Articles,
ie ECJ intervention, will be used as a last resort—triggered
only after an evaluation has taken place—or whether
the processes could run in parallel. But what is significant is,
as the Praesidium's Explanatory note indicates, that the Court
of Justice will have jurisdiction over the implementation of Union
policies relating to Freedom, Security and Justice (see Article
9 below).
Article 5:[Operational cooperation]
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In order to ensure that operational cooperation on internal security is promoted and strengthened within the Union, a standing committee may be set up within the Council. Without prejudice to Article [207 TEC], it shall be responsible for coordinating the action of Member States' competent authorities, including police, customs and civil protection authorities. The representatives of Europol, Eurojust and, where appropriate the European Public Prosecutor's Office, may be involved in the proceedings of this Committee. The European Parliament shall be kept informed of the work of the committee.
Explanatory note
"The purpose of this article is to introduce into the Constitution one of the two "golden rules" identified by the Group: that in favour of identifying and introducing a separation between "legislative" tasks and "operational" tasks within the Union and reinforced coordination of operational collaboration at Union level (page 4 of the report: "golden rule"):
"there should be clearer distinction between legislation (legal instruments; legislative procedures; implementation; in large part to be aligned with the general procedures of Community law)".
In this context, the Group was in favour of reinforced coordination of operational collaboration (page 16 of the report):
"To improve confidence and efficiency, the Union's current work on coordination and operational collaboration could be better organised. A clearer distinction between the Council acting in its legislative capacity and the Council exercising specific executive functions in this area would be advantageous. The Group therefore proposes that a more efficient structure for the coordination of operational cooperation at high technical level be created within the Council. This might be done by merging various existing groups and redefining in the new Treaty the current mission of the "Article 36 Committee", which should in the future focus on coordinating operational cooperation rather than becoming involved in the Council's legislative work. How best to associate the Chiefs of Police Task Force with this work is a question deserving further examination. The role of such a reformed structure [committee] within the Council could be a technical one of coordination and oversight of the entire spectrum of operational activity in police and security matters (inter alia police cooperation, fact-finding missions, facilitation of cooperation between Europol and Eurojust, peer review, civil protection). The exchange of personal data should continue to take place within the existing systems (Europol, Schengen, Customs information system, Eurojust, etc.) for which adequate rules on data protection and supervision systems are in place. One could however envisage simplifying these supervision systems by merging the various supervisory bodies."
This proposal by the Group was broadly supported at the plenary session. The wording proposed for this Article 5 is based on the text of existing Article 36 TEU, reducing its area of activity to operational cooperation alone. On the other hand, abolishing the pillars enables all the authorities concerned with "internal security" to be covered for the first time, not merely police forces but also those responsible for customs and civil protection.
The abolition of the pillars in this way will be welcomed by all practitioners who stress that cooperation must cover a broader field than merely police aspects in order to ensure internal security. The consequences of the 11 September attacks have shown the importance of mobilising all services and of cooperation between disciplines.
Finally, it should be noted that the proposed committee is not intended to deal with personal information or data. Its role is confined to general operational cooperation, for example in the event of a major catastrophe, attacks and events or demonstrations on a European scale. Exchanges of personal information, primarily in connection with organised crime, will continue to fall within existing mechanisms (Europol in particular) and to be covered by the relevant legislation in the matter. Involvement of representatives of the Union bodies in this committee is left in square brackets pending decisions on the subject."
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COMMENTARY
28. Article 5 takes forward the reference to
'operational cooperation' mentioned in Article 31, while at the
same time seeking to pursue the objective of separating the "legislative"
from the "executive" (or in this case "operational")
function. Article 5 anticipates the abolition of the Article 36
Committee (a committee of senior officials, established under
Article 36 TEU, who are responsible for coordinating activities
in the field of justice and home affairs[23]).
The new Committee would be a standing (not an ad hoc) committee,
set up within the Council and consisting of representatives of
the Member States, a Commission representative and the Director
of Europol. Its remit would be restricted to operational cooperation
and would not include legislative work. It would operate "without
prejudice to" COREPER (Committee of the Permanent Representatives
of the Member States—Article 207 TEC). It is noteworthy
that the involvement of the European Parliament would be limited
to being kept informed of the work of the committee.
29. It is envisaged that the new Committee would
have responsibility for coordinating the action of national police,
customs and civil protection authorities in the event of a crisis
of the sort mentioned in the Praesidium's note ("a major
catastrophe, attacks and events or demonstrations on a European
scale"). To what extent this would mean giving the Committee
a power to direct the actions of national police and other authorities,
and if so to whom the Committee would be accountable, needs to
be clarified. As drafted the Article would seem to extend Union
competence beyond police and judicial cooperation in criminal
matters.
Article 6:[Measures concerning public
order and internal security]
| This Title shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of their internal security.
Explanatory note
"Taken over from Article 33 TEU and Article 64(1) TEC."
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COMMENTARY
30. Article 6 reproduces the language of Articles
33 TEU and 64(1) TEC but with one slight difference. While the
current Treaties refer to the 'safeguarding of internal security',
the word 'their' has been added to Article 6, making it clear
that the reference is to the internal security of the Member States.
This change may imply an attempt to distinguish more clearly between
areas of EU action and competence (and the notion of the security
of the Union) and areas of Member State action. This view is reinforced
if Article 6 is read in combination with Article 9 on judicial
control. There, the limitation on the jurisdiction of the Court
of Justice is restricted to police operations and other Member
States' action to maintain law and order and safeguard internal
security where such action 'is a matter of national law'.
Article 7:[Administrative cooperation]
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The Council shall adopt by a qualified majority regulations to ensure cooperation between the relevant departments of the administrations of the Member States in the areas covered by this Title, as well as between those departments and the Commission. It shall act on a Commission proposal, or, in the areas covered by Chapters 3 and 4 of this Title, either on a Commission proposal or on the initiative of a quarter of the Member States and after consulting the European Parliament.
Explanatory note
"Taken over from Article 66 TEC."
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COMMENTARY
31. This provision is based on Article 66 TEC,
but now specifies that Union action on administrative cooperation
should take the form of "regulations". This means "European
regulations" as defined in Article 24. So they would be "non-legislative
acts" and the "legislative" (co-decision) procedure
would not be applicable.[24]
Because such regulations would not be delegated or implementing
acts (within the meaning of Articles 27 and 28 respectively) Article
7 appears to be an example of regulations being made in a case
"specifically laid down in the Constitution" as provided
for in Article 26. A further difference is that EU measures in
the field will be adopted by qualified majority—and not
unanimity as is currently provided. This change is not accompanied
by a greater role for the European Parliament, which simply is
to be consulted.
20 [1997] OJ C 251/1. Back
21
The FATF is an intergovernmental body whose purpose is the development
and promotion of policies both at national and international levels
to combat money laundering. It monitors progress in implementing
anti-money laundering measures, mainly through a mutual evaluation
process. Each member country is examined in turn by the FATF on
the basis of an on-site visit conducted by a team of experts from
other member governments and a report is drafted on the basis
of that visit. Where the report is negative, a 'peer pressure'
mechanism ensures compliance with the FATF standards. This starts
by requiring countries to deliver a progress report at plenary
FATF meetings, but may ultimately result in the suspension of
the FATF membership of the country concerned. Back
22
[1997] OJ L 344/7. The Joint Action provides for an evaluation
mechanism similar to the one of the FATF, with on the spot visits
of expert teams in Member States resulting in the drafting of
a Report. But the impact of the exercise is not clear, as the
Joint Action provides that the Council 'may, where it sees fit,
address any recommendations to the Member State concerned and
may invite it to report back to the Council on the progress it
has made by a deadline to be set by the Council (Article 8(3)). Back
23
The Committee comprises a representative from each Member State,
the Commission and the Council Secretariat. It assists preparing
the briefing of COREPER at Justice and Home Affairs Councils and
guides the work of experts' working groups and can provide the
Council with opinions either at the Council's request or on its
own initiative. It usually meets about once a month. Back
24
We commented on the problems of this terminology in our Report
The Future of Europe: Constitutional Treaty-Draft Articles
24-33 (12th Report, Session 2002-03, HL Paper 71). Back
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