Justice and Home Affairs under Lisbon: when the European Parliament works its way up

The Swedish presidency’s decision to wait for the entry into force of the Lisbon Treaty before adopting the Council Framework Decision on the use of Passenger Name Record (PNR) data, could not possibly have gone unnoticed, given the current atmosphere surrounding EU’s internal security politics. At the surprise of many, the Swedish Presidency has decided not to pass the framework decision under the current unanimity rule of the third pillar. Rather, the proposal will be negotiated under co-decision, once the Lisbon Treaty will enter into force. Tabled in 2007 by the European Commission, the proposal aims at harmonizing member states’ legislations on providing PNR data by air carriers within the EU in order to prevent and fight terrorist offences and organised crime.

This is a sign of good will that accommodates the prominent role of the European Parliament under Lisbon, and in particular of the European Civil Liberties Committee’s powers (Libe Committee). The expansion of the “ordinary legislative” procedure to police and judicial cooperation in criminal matters will indeed place the European legislator on an equal footing with the Council.

The Libe Committee made its voice heard. There was indeed a justified fear that further decisions like the recently adopted Europol Council Decision, would be rushed by the European Commission and EU member states. This way they would be adopted under the current third pillar rules; therefore flouting the European Parliament’s say on those matters.

Under Lisbon, not only will the European Parliament be increasingly involved in future decisions in the Area of Freedom, Security and Justice, but it is expected to co-legislate on the instruments of the third pillar which needs to be replaced within the five years transition period and adopted under the new “ordinary legislative procedure” (see article 10 of Protocol 35 TFEU). While the practical steps of such a transition are not yet clear, it is most certain that the European Commission will have to review all the acts adopted so far under the Third Pillar that require a change of legal basis. DG Justice Liberty and Security officials can therefore expect considerable work in the coming years.

With the extension of the co-decision to the field of police and judicial cooperation in criminal matters, the Libe committee will become one of the most powerful committees of the European Parliament. However, 18 years after its creation, the Libe Committee is not a novice. With the partial communautarisation of JHA it has been influential in many dossiers on migration, border management, asylum and judicial cooperation in civil matters. At the same time, it made a strategic use of the Luxembourg Court in the third pillar. Not only did it succeed to get the annulment of the first EU-US agreement on PNR (case 317/04) but it also challenged the European Commission over a border management project in the Philippines (case 403/05).

This noteworthy development recalls the experience of the Environment Committee, which evolved from a mere consultation role to a co-decision actor, significantly altering environmental policy-making. It can therefore be expected that EU’s internal security politics will involve increased competition between committees of the European Parliament (for instance when it comes to the external dimension of JHA). National governments will now consider seriously establishing firm links with their MEPs when heated dossiers will be debated in Strasbourg. Lobbies such as technology security companies will consider influencing actively the Libe Committee. It will also force agencies previously almost immune to the European Parliament politics like Europol and Eurojust to develop networks and strategies vis-à-vis the Libe Committee. The future mandate of Frontex, the European Surveillance System, Eurodac, criminal proceedings, etc… will be high on the agenda of the Libe Committee.

The European Parliament is therefore working its way up. Political games are only about to start. May this politicization not forget that at the heart of the debate on EU’s internal security lie the citizens and the guarantee of his/her fundamental rights. In order to find legitimacy in the eyes of their electorate, MEPs know indeed that fundamental rights and civil liberties are an important part of the equation.