An avant-garde for internal security

Written by Hugo Brady, 03 October 2005

Even the most hardened eurosceptic admits the need for closer EU co-operation to fight terrorism, organised crime and illegal immigration. While criminals and terrorists can move easily between EU countries, national policemen cannot. EU interior ministers, therefore, are trying to find ways of working together more effectively on policing and prosecutions.

In November 2004, EU leaders approved the ‘Hague programme’. This package includes substantial proposals on police and judicial co-operation which governments have promised to implement by 2010. However, the member-states are unlikely to meet this deadline under the current decision-making procedures. One promising way forward may be for groups of countries to co-operate more closely in avant-gardes, in the hope that the more reluctant will follow in due course.

The EU’s rules for taking decisions on criminal justice and policing are complex and slow moving. Each member-state can both propose legislation and veto anything. The institutional machinery is clogged up with a surfeit of proposals that often have little support. Turf battles between the Commission, Council of Ministers and European Parliament hamper decision-making even more.

The Council wants the European Parliament and Commission kept away from controversial decisions on internal security – but those institutions want the governments to be accountable to them. For example, the governments do not want MEPs to vet a contentious proposal on the retention of telephone and internet data. MEPs claim that the governments should listen to them, since this proposal could affect single market rules for telecoms and infringe civil liberties. If the governments ignore the Parliament and pass this law on their own, some MEPs may ask the European Court of Justice to strike it down.

The Court is already flexing its muscles in criminal law. In June, it ruled that national laws must conform strictly to EU criminal justice measures. The member-states opposed this, not wanting the Court to judge how they implement criminal law. Then in September, the Court granted the Commission the right to impose criminal sanctions for offences against EU law. This ruling is controversial. EU governments think criminal sanctions should be a national matter only. Such judgements may make governments think twice before extending the EU’s role in criminal justice.

However, given the threats they face, the governments recognise that deeper EU cooperation remains essential. Even the British, usually cautious on criminal justice co-operation, are keen to develop the EU’s role in counter-terrorism and want speedier decision-making. But how could these objectives be achieved?

One option would be for member-states to vote by a qualified majority – but few wish to give up their veto. Several governments would nevertheless support a less controversial step: not to discuss any proposal unless it has the backing of at least four member-states. That would reduce the number of proposals in the system and thus speed up decision-making.

Another option is for small groups of willing countries to move ahead on their own. In May, the Benelux three, Austria, France, Germany and Spain signed the treaty of Prüm. This treaty contains a number of innovations, such as sharing DNA and fingerprint data, and common rules on aeroplane security. In extreme cases, police forces will even be able to pursue criminals across national borders without notification. If the treaty is successful these seven countries will invite other member-states to participate in three years time.

Even though this treaty is outside the EU framework, the signatories have been careful to ensure that it respects EU law. This inter-governmental avant-garde should help police, judges and intelligence services to cooperate more closely on the ground, instead of having to wait for diplomats to hammer out deals in Brussels. In the long term, if more member-states signed the Prüm treaty, these measures could become EU law under the enhanced co-operation procedure, which requires a minimum of eight countries to participate. There is a precedent for avant-garde co-operation that starts outside the EU but later moves inside. Passport-free travel in Europe began when five countries signed the Schengen treaty in 1985; it became part of EU law in 1999.

Member-states will continue to find it difficult to reach agreement on criminal matters. The constitutional treaty that promised to make decision-making easier is now dead. Thus avant-garde groups may well have value in enabling member-states to work together more closely in the fight against terrorism and organized crime. The treaty of Prüm offers an attractive model.