Justice co-operation - opting in just to opt out?

Wed, May 21, 2008, 01:00

Lisbon explained - part 8:Decision-making in the justice field should be more democratic for all member states under the treaty - bar Ireland and Britain, who retain their "opt outs" from any new legislation proposed, writes  Jamie Smyth,European Correspondent.

SOME OF the most significant changes proposed by the Lisbon Treaty are in the field of freedom, security and justice, which covers police and judicial co-operation, border protection, asylum and immigration police and judicial co-operation in civil law.

The European Commission has become increasingly active in the justice field over the past decade, issuing a stream of draft legislation aimed at combating terrorism, protecting the fundamental rights of citizens and strengthening the EU's external borders.

But some EU states and the commission have become increasingly frustrated by blockages at the Council of Ministers caused by one or two states issuing vetoes over legislative proposals.

One example of this was a move by Ireland and Britain to block draft EU legislation last year that would have guaranteed criminal suspects across Europe a minimum standard of procedural rights.

Because decisions in the justice field are currently taken on the basis of unanimity, they could veto the law even though a qualified majority supported it.

Lisbon introduces qualified majority voting in the justice area and allows the European Parliament to amend the legislation or vote it down. This should enable draft EU legislation to pass into law more easily while also boosting democratic accountability by MEPs.

The treaty would also give the European Court of Justice (ECJ) jurisdiction to interpret and review EU legislation and decisions.

Many experts believe this could have a fundamental impact on European legislation, which would have to comply with the Charter of Fundamental Rights. During the negotiations on Lisbon, EU leaders agreed to allow the ECJ to review existing laws five years after the treaty enters into force.

Lisbon also creates the ability for the Council of Ministers to create a single European Public Prosecutor to investigate and prosecute offences against the EU's financial interests. This requires the backing of all member states but, if no agreement is possible, then a minimum of nine EU states can move ahead on their own and create such a post.

Lisbon supporters say the various changes would increase the efficiency of EU decision-making and enable the union to act in areas that increasingly require cross-border solutions such as immigration, organised crime and terrorism. They also cite the strong public support regularly expressed in opinion polls for EU action in the justice area.

But boosting the EU's role in the sensitive field of police and judicial co-operation has proved controversial among critics of European integration who fear national sovereignty is being diluted.

To overcome the fears expressed by some EU states, notably common law countries such as Ireland and Britain, a so-called "emergency brake" procedure was agreed during the talks. This mechanism would enable a state to refer a draft law that they felt "would affect the fundamental aspects of its criminal justice system" to EU leaders for discussion. If no agreement is possible, EU leaders could agree to allow sceptical states to "opt out", while the others could move ahead and adopt the measure among themselves.

During the Intergovernmental Conference (IGC) last year that drafted the Lisbon Treaty, Britain sought new guarantees that it could not be forced to implement European legislation that could threaten the specific character of its common legal system. It feared that it could not employ the "emergency brake" on a regular basis without antagonising other EU member states that want to push ahead with European integration.

Member states reluctantly agreed to a new protocol that enables Britain, and Ireland, which also chose to adopt the protocol, to maintain their existing right to "opt out" of new legislation in the field of judicial and police co-operation. Under this protocol both countries also have the right to "opt in" to new EU legislation in the area if they wish.

This provision is similar to an existing "opt in" mechanism that both countries already share in relation to EU measures on immigration and border security due to their decision to remain outside the Schengen free travel area. This provision has also been maintained under Lisbon, although it will be less favourable to both Ireland and Britain.

Under Lisbon other EU member states for the first time get the right to exclude Britain and Ireland from existing justice measures that they have signed up to if they later decide to opt out of related legislation. Both states could also face financial penalties for not opting to take part in EU justice measures under tough new rules laid down in the Lisbon Treaty.

For example, the Republic has already signed up to join a new EU border management database known as SIS II, which is considered essential to tackle terrorism and crime. But if the EU decides to enhance the database in the future and the Republic uses its "opt out", a majority of other states could force the Government to leave the SIS II system altogether. Ireland may also have to pay to compensate the other EU member states.

When the protocol was being negotiated last year one EU diplomat told The Irish Times that other EU member states could enforce these new powers if they felt that "by dining a la carte on the justice menu, Ireland and Britain are distorting existing EU measures".

One of the big concerns of states such as Spain was that Britain and Ireland could help to shape justice legislation at the Council of Ministers and later choose not to implement it.

Aware of the sensitivities that the "opt in" protocol generated during the discussions on Lisbon, the Government attached a declaration to the treaty promising to review its policy after three years, and to take part in EU policy "to the maximum extent it deems possible".

The Government also chose not to negotiate the possibility to apply a permanent "opt out" from the jurisdiction of the ECJ when the five-year transition period is over.

Lisbon should therefore make decision-making in the justice field more efficient and democratic for all member states bar Ireland and Britain, who retain their "opt outs" from any new legislation proposed by the union.

But it could also create difficult choices for the Government given its close relationship with Britain in the field of judicial and police co-operation and its desire to remain within the mainstream of EU policy making.