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19th Apr 2021

Frattini seeks to apply new EU treaty rules before 2009

Although the EU's new Lisbon Treaty is meant to be ratified only by 2009, justice commissioner Franco Frattini has said he wants to act as if the treaty is already in force by involving the European Parliament in major justice decisions.

The commissioner told a Brussels audience on Thursday (8 November) that innovations of the Lisbon Treaty in his own portfolio area – justice and criminal co-operation – should not wait until mid-2009 when all EU member states are meant to have completed ratification of the treaty.

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  • Commissioner Frattini is impatient to see the Lisbon Treaty rules in force (Photo: EUobserver)

The Lisbon Treaty gives the European Parliament so-called "co-decision" powers in the area of justice and policing – giving MEPs a say over the sensitive policy area which under the current treaties is generally the sole prerogative of member states and the European Commission.

The commissioner said he is "strongly in favour" of the parliament's newly-gained co-decision powers arguing the new system would inject "more democracy" in decision-making while making all EU institutions "obliged" to take responsibility for EU lawmaking in justice matters.

"I don't want at all to leave proposals we have prepared for the coming months condemned to wait until when the treaty is in force," he said, but added "neither do I want to follow the old system" in the meantime.

"Both alternatives are not acceptable to me," he stated announcing that he would propose to the council of ministers, member states' decision-making body, to start applying the new co-decision rules already this year.

"I will propose to the Council to treat third pillar initiatives as if they are under co-decision," he said referring to the current treaties' "pillar" structure which excludes MEPs from having a say on justice matters.

The commissioner said his gesture towards MEPs would mean "political co-decision," pledging to "take into full consideration the amendments and proposals from the parliament."

The proposal is likely to stir discussions among member states on whether single aspects of the Lisbon Treaty can already be implemented even though the EU's new institutional rules are not yet formally in force.

Dutch justice minister Ernst Hirsch Ballin on Thursday declined to react to Mr Frattini's specific plan but added that "this is a proposal which has a broader meaning, it is about the relation between the old and the new treaty."

"The treaty had not been ratified yet, and this would be about anticipating what is in the new treaty," he added.

Gentlemen's agreement

One of Mr Frattini's officials told EUobserver that since there is no legal basis yet for formal involvement of MEPs in justice decisions, political co-decision "can only take the form of an informal trialogue" between the commission, the parliament and the EU presidency representing member states.

The official added that the commissioner "will put this idea forward in an informal way" to member states. "If you put it forward formally it will not work since there is no legal basis," the official added describing the scheme as a "gentlemen's agreement."

Mr Frattini already experimented with the informal method when negotiating the Schengen Information System II, a data exchange scheme, with MEPs last year. MEPs legally only had powers over a part of the scheme but were consulted over the whole package by Mr Frattini.

One key test for Mr Frattini's gentleman's agreement will take place over a controversial proposal he made earlier this week on gathering passenger name records (PNR) of air travellers.

While presenting the plan on Tuesday, Mr Frattini said he will propose to the parliament "that there will be enhanced political negotiation" adding that MEPs "should be involved as closely as possible"

He pointed out that he was not obliged to do this under the current treaties.

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