The European Union, the Treaty of Lisbon and “Justice and Home Affairs”

What is less well-understood is how significant the adoption
of the Lisbon Treaty will be for the United States. Few outside of the
diplomatic establishment have a clear understanding of how America will be
affected by these changes. In the near term the changes are likely to be
relatively modest; in the long run they are likely to be profound, particularly
in the area of “Justice and Home Affairs” (JHA), which is the European name for
areas of law and policy that Americans think of as law enforcement, homeland
security (or, as the Europeans call it “internal security”), and
counter-terrorism.

To put the matter simply (and to simplify greatly for
introductory purposes), in the past JHA matters have, presumptively, been the
responsibility of each independent sovereign nation that is a member of the EU.
Thus, the basic rule has been that questions of policing, for example, were
each nation’s individual responsibility. Under the law as it existed prior to
adoption of the Lisbon Treaty, that presumption of individual state action
could be overcome—but only with the unanimous agreement of all 27 member
nations of the Union.
To be sure, under this régime collective action has occurred—supranational
organizations like Europol (a Europe-wide police agency), Eurojust (a
Europe-wide prosecutorial organization), and Frontex (the European border
security coordination agency) have been set up, and common rules for warrants
and extradition are being developed—but action in this area was often perceived
by Americans as slow and incremental, since consensus was required for any
action.

Under the Lisbon Treaty that will change in at least two
significant ways: First, the European Council (the body where each member
nation has a single vote) will be authorized to act under a more majoritarian
rule (it won’t be a simple majority system but rather one with weighted voting)
and unanimity will no longer be required. Second, the Council will now share
decision-making power with the members of the European Parliament (comprised of
elected representatives from the 27 EU member states). That body had,
previously, very little real authority in JHA matters—its pronouncements were
mostly viewed as advisory and hortatory. As a consequence many in America perceived the Parliament as irrelevant and somewhat irresponsible. Under the
Lisbon Treaty the Parliament will now have greater relevance.

A (Very) Brief
History of the European Union

The history of the European Union is rich and complex.
The changes wrought by the Lisbon Treaty can only be understood against the
backdrop of that history.

The EU owes its existence to a series of supra-national
treaties. At various times and in various combinations, the separate sovereign
countries of Europe have adopted treaties binding themselves to participation
in the supranational structures and institutions of the Union.

The EU began with the adoption of the Treaty of Rome (more
formally known as the Treaty Establishing the European Community), which was
signed by six nations (West Germany,
France, Italy, Belgium,
Netherlands, and Luxembourg) in
1957. At its inception the European project focused primarily on establishing
common economic policies amongst the several nations. Battered by World War II,
this first union grew out of a proposal to create a common economic market in
coal and steel. It was thought that this sort of community approach to vital
factors of production would “make war
unthinkable and materially impossible.” [2]

Over time, the Community expanded its role in the economic
affairs of Europe,
creating various institutions and systems for fostering a common economic
market. Perhaps most notably, in 1985 some members of the Community adopted the
Schengen Agreement,[3] which led to the elimination of border controls between the signatory nations.
The Schengen area has since been expanded to include twenty-five separate
nations and formally incorporated into EU governing law. As a result, one may
now travel from Portugal to Poland without
the need to show a passport.

Later still, in 1992, European nations adopted the
Maastricht Treaty (formally known as the Treaty of European Union). The treaty
was notable for the transition of the European
Community to a more formal Union and for beginning the process that led to the adoption of the Euro as a
currency. As the Euro zone expands, one now uses the same currency in France as in Finland.

To give effect to these two treaties, the Union has
developed four institutions to implement its policies. These institutions, at
least in form, will be familiar to the American reader. Thus, the Union has a
European Parliament, consisting of elected officials from throughout Europe, and a
European Court of Justice, akin to our court system.

The executive function is split between the European Council
(which consists of the heads of state of the twenty-seven member nations) and
the European Commission (which is, in effect, the Brussels bureaucracy). Naturally, as the elected heads of state, the Council has a
certain degree of primacy. It can act for Europe, even when no treaty directs
it to do so by the simple expedient of acting with unanimous agreement. Until
the adoption of the Lisbon Treaty, the Presidency of the Council rotated every
six months among the member states.

By contrast the Commission staff acts only insofar as they
have authority to do so. Often that authority comes from a provision of one of
the EU’s treaties. Equally often, the Commission (which is akin to our own
civil service) acts pursuant to a direction from the Council in an area where
no treaty-based role for the European Union exists.

Thus, where a treaty has spoken, the Commission can act;
where it has not, the Council can act on behalf of Europe, often with the help and
assistance of the Commission. Of course, even if the Council has no de jure role over an issue of
supra-national concern to Europe (since a treaty has already spoken to the question), the collective view of the
members of the Council carries highly persuasive weight with the Commission in
determining how to execute its authority.

But the greater significance of Maastricht,
at least insofar as it applies to areas under consideration in this paper, was
the steps it took to expand European-level powers of the Commission (the
executive) beyond economic issues. Under Maastricht, the economic powers of
the European Community were transferred to the Union and exercised under a “First
Pillar” of authority. In these matters, the institutions of the European Union
had, in effect, plenary authority to act.

But several member states wanted to extend the economic
cooperation of Europe to the areas of foreign policy, military, criminal justice, and judicial
cooperation. Others, most prominently the United Kingdom, had misgivings
about giving control over these sensitive sovereign areas to the supra-national
institutions of the Economic Community. As a compromise, Maastricht created two other “pillars”—one for a Common Foreign and Security Policy and
one for Justice and Home Affairs. In these two pillars, unlike the First
Pillar, the powers of the Commission, the Parliament, and the Court of Justice
to influence these new intergovernmental policy areas were greatly limited. In
effect, any supra-national action required a unanimous agreement of all the
member states before the European institutions could act.

Thus, as the European Union approached the 21st Century it
had a cast to it that would look almost like a federalism discussion to an
American observer. Some powers (mostly in the economic arena) were principally
exercised by a centralized executive (the European Commission) in Brussels.
Other powers, mostly those relating to foreign and defense policy and those
relating to law enforcement, were principally exercised at the independent
member state level, except to the extent that the states agreed to let Brussels
take the lead. To be sure, from the American perspective it is a federalism
discussion that is skewed—imagine
Washington having no foreign or defense policy role, but a paramount economic
authority—but nonetheless the contours would be familiar.

The Treaty of Lisbon

From its small, early beginning in 1957, the European Union
has grown into a colossus. It has twenty-seven member states and spans the
distance from Ireland to the newest states in the southeast, Bulgaria and
Rumania. As it has grown, however, the capacity for consensus building has
diminished. Where once it was
comparatively easy to find agreement among six or later ten states with a
common heritage, now the Union has twenty-seven actors, many with very diverse
cultural and political backgrounds. European commentators, assessing the
situation, saw increasing caution and lassitude at the pan-European level.

In part to answer this, Europe has now adopted the Treaty of
Lisbon.[4] The treaty is a further step on the road to more centralized power in Brussels,
particularly in the area of Justice and Home Affairs. Whether the de jure changes will be followed by
significant de facto changes remains
to be seen, but there can be little doubt that Lisbon is intended to make
collective action at the European level easier, with a concomitant reduction in
the authority of individual sovereign nations to act.

A number of changes will push Europe down this path to
centralization.[5] Among the most significant in the treaty (for purposes of Justice and Home
Affairs issues) are:

• The European Union will now have a President,
selected by the European Council (i.e., the twenty-seven heads of state).[6] The President will chair the Council and may become the leading voice of Europe
around the world. Many years ago, Henry Kissinger was said to have asked, “Who
do I call if I want to speak to Europe?”[7] If he had wanted to make the call, today he would dial Europe’s first
President: Herman Van Rompuy, formerly the Prime Minister of Belgium;

• Europe will also have a High Representative for
Foreign Affairs and Security Policy, selected by the Council, with the approval
of the Parliament.[8] It will also have a quasi-diplomatic service, known as the European External
Action Service (EEAS), which will operate on behalf of the High Representative.
The first appointee to the post of High Representative under the new provisions
is Catharine Ashton from the United Kingdom, who will also serve as a public
face of Europe.

• And, most significantly, the Treaty eliminated
the Three Pillar structure adopted at Maastricht. Going forward, all issues
relating to Justice and Home Affairs will be treated like those issues proposed
for adoption relating to economic affairs.

This later point will work a sea-change in the legislative
process for Justice and Home Affairs issues. As noted earlier, under Third
Pillar rules from Maastricht, unanimity was required in the European Council to
adopt a measure relating to Justice and Home Affairs for the Union. Now,
matters will proceed differently, through two processes known as “Qualified
Voting Majority” and “Co-Decision”—processes that are part of the “normal
legislative process” in the EU for economic affairs.

Qualified Voting Majority (or QVM), as its name implies,
means that unanimity within the European Council will no longer be required for
Europe to collectively act on JHA matters. Instead, voting will be done by each
country, which casts a ballot that is “weighted” roughly in proportion to its
population. The majority requirement (to get a majority of the weighted votes)
is further “qualified” by a distribution requirement—the positive votes must
have fifty-five percent of the individual countries representing at least sixty-five
percent of the total population.[9] Despite the complexity of the voting system, the end result is clear—a working
majority of the member states is now authorized to create supra-national policy
on matters of law enforcement and homeland security in situations where
previously unanimity was required. Minority states that do not agree will,
nonetheless, be bound to follow the European lead.[10]

Co-Decision reflects the increased power of the European
Parliament. Where, previously, the Council was merely obliged to “consult” with
the Parliament, now initiatives proposed by the Council must be affirmatively
adopted by the legislature. Without Parliament’s review and approval no new
European initiative can proceed. In effect, the Parliament has gained a great
deal of new power to control the justice and home affairs operations of the
Union.

These changes in decision-making authority will operate
across a broad range of EU activities. The new non-unanimity and co-decision
procedures will apply to rules about visas, immigration, judicial cooperation
in criminal matters, the operation of Eurojust and Europol, and matters of
non-operational police cooperation. Questions of asylum policy and illegal
immigration will remain areas where qualified majority and co-decision apply.
Only issues of passport and identity card issuance, family law, and operational
police cooperation will remain ones requiring unanimous Council approval that
do not require Parliamentary assent.[11]

In addition to these changes in decision-making powers, the
treaty also effects changes in judicial review. Prior to the Treaty of Lisbon,
justice and home affairs matters had generally been deemed questions of
domestic law, subject to review by the courts of each member state. Now, to the
extent these JHA matters become the subject of pan-European legislation, they
will also be subject to review by the European Court of Justice—adding another
centralizing layer of authority to domestic practices.

Finally, and perhaps most significantly, the Treaty
establishes a new standing committee within the European Council on issues
relating to internal security, to be known as “COSI.”[12] The new committee will attempt to strengthen coordination among the member
states on issues of police and customs cooperation, external border protection
and judicial cooperation in criminal matters. While COSI will not make
legislative proposals directly, it seems likely that its efforts will influence
the Council in developing more pan-European approaches to these areas of law
enforcement and homeland security.

What Does the Future Hold?

So, what does all of this mean for the European Union?

At first, one suspects the answer is “not much.” The
procedural changes worked by the Lisbon Treaty are immense. It will take a
great deal of time simply to create and staff the new institutions for which
the treaty calls. Symbolizing the difficulty in transitioning to a new legal
régime, the provisions of the treaty giving the Commission and the Court of
Justice authority over police matters and judicial cooperation in criminal
matters will not actually take effect for five years, in December 2014.[13]

Even after the new treaty institutions are created and
staffed, it remains to be seen how much true authority they will have. Though
the intention of the treaty is clearly to centralize more decision-making
authority in Brussels, the capacity and expertise to exercise that authority
will take time to develop. One sign of that developing expertise will likely be
the creation of permanent staff cadres with homeland security and justice
expertise at the new European institutions. One might, for example, expect to
see the staff of the COSI become a repository of pan-European expertise in
these areas, much as the staff of congressional committees is in the United
States. And if the new President intends to exert any influence in the area,
one might see the establishment of a structure akin to the NSC/HSC structure in
the Executive Office of the President here in America. Conversely, the lack of
these authoritative repositories of expertise will, in the end, make
significant centralization of JHA affairs more difficult.

Then, too, it remains to be seen how much the QVM system
changes the dynamics of the European Council. It is often said that in Europe
very little gets done unless the “big” countries want it to be done—and that
when they agree, things happen. Historically, the larger countries (e.g.,
Germany, France, Italy, Spain, and the UK) have had powerful terms as
Presidents of the Council and achieved significant changes, while smaller
countries have been less effective on the European stage. It seems unlikely
that the QVM voting system will change that and that the continued influence of
the larger European nations will continue.

The “wild card” in the equation, if there is one, is the
European Parliament. In the past the Parliament has had a negligible role in
justice and home affairs matters. Though “consulted” by the Council,
parliamentarians were, in practice, often ignored. This, in turn, fostered
within the Parliament a fairly strong mindset in opposition to EU-wide security
matters. Often this opposition was couched as an objection to the encroaching
of the growing EU security state, and several MPs have gained a small
following as “defenders of freedom.” It
remains to be seen whether the grant of greater authority to the Parliament
will moderate its sometimes strident tone, or whether the parliamentarians will
now interpose their objections to increased security measures with greater
success. Earliest signs are not
encouraging – the Parliament’s first act was to reject an terrorist financing
information sharing agreement with the United States, rejecting a successful
program implemented shortly after September 11.

And what does it mean for America’s trans-Atlantic
relationship with the EU and with its traditional sovereign allies? Only time
will tell. Some may see the new EU power structure as a more effective partner.
If the QVM process works to energize European action and the Parliamentary
co-decision rule does not become an obstacle, the strengthening of Brussels may
work in America’s favor.

On the other hand, others see the strengthening of the EU as
a challenge to the United States’ long-standing bilateral relationships with
the countries of Europe. Under this view, we are more likely to achieve our
political objectives with the assistance of our traditional friends than we are
working with the new EU institutions. As Henry Kissinger has said:

When
the United States deals with the nations of Europe individually, it has the
possibility of consulting at many
levels and to have its view heard well before a decision is taken. In dealing with the European Union, by contrast,
the United States is excluded from the decision-making process and interacts only after the event . . . . Growing
estrangement between America and Europe
is thus being institutionally fostered.[14]

The answer, in the end, is likely to lie somewhere in
between. It will depend, to a large degree, on how the European centralization
project moves forward. One suspects that, for the near (and even medium) term,
America’s relations with its traditional sovereign peer allies will continue to
form the bedrock of our counter-terrorism operations. Unless and until Europe
develops a coherent supra-national police force (not to mention a
supra-national intelligence community) with whom their American equivalents can
interact (if, in fact, we would want to—itself an open question), it is likely
that our exchanges of information and operational assistance with member states
and their domestic justice and home affairs services will continue to
predominate.

In the longer term, however, the Treaty of Lisbon signals a
clear European commitment to increased Europeanization of issues traditionally
thought of as state and local powers. Moving forward, America would be wise to
take that trend into account.