Select Committee on European Union Sixteenth Report

Article 2[16]: [Role of the European Council]

The European Council shall define the guidelines for legislative and operational action within the area of freedom, security and justice.

Explanatory note

"This Article takes up the Working Group's conclusions according to which, based on the Tampere European Council model, the European Council can establish a multiannual strategic programme defining a general framework for Union action on legislative and operational cooperation.

(cf. page 4 of the report):

"In addition, one could envisage that, in line with the example of the Tampere European Council, a multiannual strategic programme might be set by the European Council (or the Council at the level of Heads of State or Government) following consultation of the European Parliament and national parliaments, defining an overall framework for the Union's action in relation to legislation and operational collaboration."

It became clear that the European Council was able to set broad guidelines and bridge the legislative and operational programmes. The particular role assigned to the European Council within the area of freedom, security and justice is one characteristic of the matter under consideration and this was recognised by the Working Group (cf. page 4 of the report). The Working Group considers that a single legal framework does not mean that Union procedures must necessarily be applied in exactly the same way as those currently under the first pillar. The wording chosen reflects the reality, as it emerges in particular from the decisions and guidelines adopted at the Tampere and Seville European Councils."


23.  This is a new provision, giving constitutional expression to what the European Council has been doing de facto over the past few years in these matters (with the example of the Tampere Conclusions being the most prominent). What is noteworthy is that the European Council is to become obliged to define guidelines for legislative and operational action. It is envisaged that the European Council will continue to set multiannual strategic programmes, but will not get immersed in the detail of particular legislative measures. The involvement of the European Council (ie the Heads of State or Government of the Member States and the President of the Commission) and not just the Council of Ministers in this way is identified as a "characteristic of the matter" and reflects the continuing political importance and sensitivity of Union action in the area of freedom, security and justice.

Article 3:[Role of national parliaments]

1.  National parliaments may participate in the evaluation mechanisms contained in Article 4 of the Constitution and shall be involved in the political monitoring of Europol's activities in accordance with Article 22 of the Constitution.

2.  [Notwithstanding the provisions foreseen in the Protocol on the application of the principles of subsidiarity and proportionality, where at least one quarter of national parliaments issue reasoned opinions on non-compliance with the subsidiarity principle of a Commission proposal submitted in the context of Chapters 3 and 4 of this Title, the Commission shall review its proposal. After such review, the Commission may decide to maintain, amend or withdraw its proposal. The Commission shall give reasons for its decision. This provision shall also apply to initiatives emanating from a group of Member States in accordance with the provisions of Article 8 of this Title.][17]

Explanatory note

"A broad consensus emerged within the Working Group to recognise the particular role of national parliaments in the area of freedom, security and justice. This area affects fundamental freedoms and is at the very heart of the principle of subsidiarity. Under the current system, national parliaments participate in the adoption of applicable rules, in particular via the national ratification of conventions. Since this legal instrument will no longer appear in the Constitution, the Working Group felt that national parliaments should continue to play an important role. The various measures proposed make it possible to take into account this specific feature of the area of freedom, security and justice. (cf. page 22 of the report on national parliaments):

"The specific nature of this area has already been stressed. The work and the organisation of national police and the content of national criminal law are at the core of the competencies that define a state. On the one hand, there is a need to take account of the particularities of this area, especially sensitive to human rights and at the heart of subsidiarity, for which the national parliaments have responsibility (e.g. ratification of conventions).[18] Reform of the legal instruments, the legislative procedures and operational cooperation is indispensable and will lead to increased responsibility for the European Parliament, but national parliaments should continue to play an important role. On the other hand, the Group could try, as much as possible, to build on results found in the Convention generally on this issue, rather than to devise special mechanisms exclusively for the current 3rd pillar. The Working Group submits the following proposals:

  —involvement of national parliaments in the definition by the European Council (or the Council at the level of Heads of State or Government) of the strategic guidelines and priorities for European criminal justice policy. Such involvement will only be meaningful if there are substantive debates in national parliaments about the options to be considered at the European Council well in advance of the latter taking place;

  —regular inter-parliamentary conferences on the Union's policies in this area (in particular by joint meetings of the responsible committees on Justice and Home Affairs of national parliaments, as suggested by WG IV);

  —use of the "subsidiarity early warning mechanism" (devised by WG I) in particular for the specific aspects of subsidiarity in criminal law matters, i.e. where it is questionable that a crime has actually a "cross-border dimension" and is of a serious nature;

  —recognising the continuing role for national legislation through exclusive use of directives (or successor) in approximation of substantive criminal law;

  —involving national parliaments in the mutual evaluation mechanism ("peer review") (see above);

  —involving national parliaments in the consideration of annual reports on the activities of Europol."

It should be noted that several of the proposals formulated by the Group are not necessarily appropriate for inclusion in the text of the Constitutional Treaty.

On the other hand, the current wording provides that the threshold in the Protocol on subsidiarity (set at one third of parliaments) would be lowered to one quarter, for proposals within the scope of judicial cooperation in criminal matters (Chapter 3) and police cooperation (Chapter 4). Since Member States also have a right of initiative in Chapters 3 and 4, it seemed justified to extend the envisaged system to cover cases in which the legislative initiative comes not from the Commission but from the Member States, in accordance with Article 8 of this Title."


24.  Article 3(1) essentially repeats Article 31(2). As mentioned above (see paragraph 17) we welcome the involvement of national parliaments in these matters, especially in exercising some political control over Europol and making it more democratically accountable. For the same reason as given above in relation to Article 31(2), "shall be involved" should be deleted or "shall" replaced by "shall have the right to".

25.  Article 3(2) is intended to be placed in the Protocol on national parliaments and provides a special rule for national parliaments monitoring the principle of subsidiarity in the area of freedom, security and justice. A lower (one quarter in place of one third) threshold for the "yellow card" is proposed (this would require the Commission to reconsider its proposal). This is welcome in so far as it goes. As we said in our recent Report on the proposed Protocol on National Parliaments and on Subsidiarity[19] we welcome a greater role for national parliaments in this facet of the scrutiny of EU legislation. But while the "yellow card" will in most cases strike the right balance between the right of national parliaments to be heard and a right of veto, the "red card" principle (which would require the Commission to withdraw its proposal if two thirds of national parliaments objected) should be maintained. As both the Working Group and Praesidium acknowledge, national parliaments have a special role in the area of freedom, security and justice. If national parliaments are to have a collective voice which could actually make a difference then the "red card" should be available here, perhaps with a one half, instead of a two thirds, threshold.

16   When the Convention has the text of a more general article describing the tasks and operation of the European Council, it will have to determine whether the above provision belongs in this chapter or whether it would not be preferable to insert it into the article in Part One concerning the European Council (Article 15 in the preliminary draft Treaty). Back

17   In a subsequent version of the draft Constitution, this provision will be transferred to the Protocol on the application of the principles of subsidiarity and proportionality (a first draft of which (CONV 579/03) had already been submitted to the Convention when this document was drawn up by the Praesidium). Back

18   This is misleading as regards the position in the UK. Parliament does not have responsibility for the ratification of conventions, though the Ponsonby rule gives some Parliamentary oversight. Back

19   The Future of Europe: National Parliaments and Subsidiarity-the Proposed Protocols (11th Report, Session 2002-03, HL Paper 70). See, in particular, paragraphs 46 and 58. Back

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