Treaty of Lisbon Implications and changes for the area of Freedom Security and Justice Training programme Lisbon Treaty - Ambassadors

Quick look into the History of the development of the area of Freedom Security and Justice A relatively new area for Europe: A relatively new area for Europe: first steps in the Maastricht Treaty (third pillar) (1993) first steps in the Maastricht Treaty (third pillar) (1993) Major Progress in the Amsterdam Treaty (1999): Development of an area of Freedom, security and justice among the objectives of the EU Major Progress in the Amsterdam Treaty (1999): Development of an area of Freedom, security and justice among the objectives of the EU Highly sensitive issues in strong connection with national sovereignty (immigration, police cooperation, judicial cooperation, family law) Highly sensitive issues in strong connection with national sovereignty (immigration, police cooperation, judicial cooperation, family law)

Quick look into the History of the development of the area of Freedom, Security and Justice An area characterized by specific instruments in the context of the Amsterdam/Nice treaty An area characterized by specific instruments in the context of the Amsterdam/Nice treaty Specificities of Instruments/role of COM and ECJ in the third pillar Specificities of Instruments/role of COM and ECJ in the third pillar Transition periods for civil justice and asylum and migration Transition periods for civil justice and asylum and migration

The Treaty of Lisbon Progress in the JLS area: major improvements + needed adjustments Progress in the JLS area: major improvements + needed adjustments An improved decision-making procedure: Higher degree of efficiency Legal certainty democratic control

Improvements in JLS area No more pillar structure (new title V Area of FSJ, comprising 5 chapters, in the TFUE) Generalisation of the Community method Extension of QMV : Police and judicial cooperation in criminal matters (except for operational cooperation and European Prosecutor) Legal migration and integration of third country nationals Visas Co-decision (ordinary legislative procedure) No more specific JLS legal instruments No more specific provisions re: external action (former Art. 24/38 TEU)

Improvements in JLS area An increased role for the ECJ An increased role for the ECJ Full competence for instruments adopted after the new Treaty (with the exception of validity and proportionality of police operations and measures) Full competence for instruments adopted after the new Treaty (with the exception of validity and proportionality of police operations and measures) Will become competent after 5 years for the existing third pillar acquis (UK opt out) Will become competent after 5 years for the existing third pillar acquis (UK opt out) Important with regard to the low degree of implementation in this area Important with regard to the low degree of implementation in this area Situation in the interim period (always possible for MS to declare that they accept the Comptence of ECJ for preliminary rulings) Situation in the interim period (always possible for MS to declare that they accept the Comptence of ECJ for preliminary rulings)

Improvements in JLS area Fundamental Rights: Fundamental Rights: The Charter of Fundamental Rights: legally binding (same legal value as the Treaties) The Charter of Fundamental Rights: legally binding (same legal value as the Treaties) Art. 6 TEU Art. 6 TEU The Charter shall not extend the competences of the EU as defined in the Treaties The Charter shall not extend the competences of the EU as defined in the Treaties Limitation of the impact of the Charter for UK, PL an CZ (protocol 30) Limitation of the impact of the Charter for UK, PL an CZ (protocol 30) Accession of the EU to the ECHR Accession of the EU to the ECHR Citizenship (citizens initiative) Citizenship (citizens initiative)

Improvements in JLS area Some institutional innovations Some institutional innovations Role of the European Council to define strategic guidelines for legislative and operational planning Role of the European Council to define strategic guidelines for legislative and operational planning Creation of COSI Creation of COSI Evaluation (art 70 TFEU) Evaluation (art 70 TFEU)

Improvements in JLS area Increased role of national parliaments: Increased role of national parliaments: Subsidiarity and proportionality control: Art. 12 TEU (general) and 69 TFEU (criminal matters) Subsidiarity and proportionality control: Art. 12 TEU (general) and 69 TFEU (criminal matters) Extension of the time period for examination and delivery of opinions (from 6 to 8 weeks under Protocol) Extension of the time period for examination and delivery of opinions (from 6 to 8 weeks under Protocol) National parliaments to be informed + take part in evaluation mechanism (Art. 70 TFEU; 12 TEU) National parliaments to be informed + take part in evaluation mechanism (Art. 70 TFEU; 12 TEU) Extended role of national parliament to scrutinise Europol and Eurojust activities Extended role of national parliament to scrutinise Europol and Eurojust activities

Adjustments JLS Adjustments JLS (1) « constitutional » adjustments (1) « constitutional » adjustments An emergency brake to ease the switch to QMV facilitated for criminal matters In the absence of a Council action within 4 months, automatic enhanced cooperation with a minimum of at least 9 MS Also applicable to European Prosecutor and operational police cooperation But facilitate enhanced cooperation Right of legislative initiative for a quarter of MS (Art. 76 TFEU)

Adjustments JLS Adjustments JLS Unanimity + consultation EP is maintained: Unanimity + consultation EP is maintained: operational police cooperation (art. 87, § 3 TFEU) operational police cooperation (art. 87, § 3 TFEU) European Public Prosecutor from Eurojust (art. 86 TFEU) European Public Prosecutor from Eurojust (art. 86 TFEU) Family law (but bridging clause) Family law (but bridging clause) Competence of MS: maintenance of law and order and the safeguarding of internal security (Art. 72 TFEU) Competence of MS: maintenance of law and order and the safeguarding of internal security (Art. 72 TFEU)

Ajustements JLS Ajustements JLS Opt in/out for UK/IE (and DK) on JLS policies, incl. in criminal matters (amendments to the protocols) Opt in/out for UK/IE (and DK) on JLS policies, incl. in criminal matters (amendments to the protocols) IE declared to opt in as often as possible IE declared to opt in as often as possible UK/IE to participate on (UK to opt in under declaration; opt out not applicable for IE under Protocol) UK/IE to participate on financial sanctions to prevent and combat terrorism and related activities (UK to opt in under declaration; opt out not applicable for IE under Protocol) Specific provisions as regard the opt in/opt out for Schengen related issues Specific provisions as regard the opt in/opt out for Schengen related issues

Adjustments JLS Adjustments JLS (3) transitional measures « 3rd pillar »: (3) transitional measures « 3rd pillar »: Title VII of the Protocol on Transitional Provisions (36): Title VII of the Protocol on Transitional Provisions (36): Principle: preservation of the legal effects of the « 3 rd pillar » act as long as they are not modified (art. 9) Principle: preservation of the legal effects of the « 3 rd pillar » act as long as they are not modified (art. 9) Exception: Exception: The Court will not be competent for a period of up to 5 years The Court will not be competent for a period of up to 5 years Opt out UK 6 months before the end of the period Opt out UK 6 months before the end of the period Opt in UK « à la carte » (UK chooses the acts) Opt in UK « à la carte » (UK chooses the acts)

Some Comments A major step forward for this still relatively new policy area A major step forward for this still relatively new policy area Will certainly allow progress (together with the adoption of the Stockholm Programme) Will certainly allow progress (together with the adoption of the Stockholm Programme) Important questions remain: police cooperation/article 83 TFEU, question of the « transborder issues » in the judicial area…. Important questions remain: police cooperation/article 83 TFEU, question of the « transborder issues » in the judicial area…. We still have to evaluate all the consequences (in particular in external matters) We still have to evaluate all the consequences (in particular in external matters) We will have to live in a complex legal framework! We will have to live in a complex legal framework!

Next steps Transitional period: Transitional period: Omnibus communication prepared by COM to adapt the legal basis Omnibus communication prepared by COM to adapt the legal basis Specific situation of the third pillar Specific situation of the third pillar Some first political tests: Some first political tests: Role of the EP (swift case)… Role of the EP (swift case)… Decision of the German Constitutional Court… Decision of the German Constitutional Court… Political will is the key issue to fully use opportunities offered by the Treaty Political will is the key issue to fully use opportunities offered by the Treaty

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