The Third Pillar Treaty Provisions on Police Cooperation: Has the EU Bitten off More Than It Can Chew?

8 Colum. J. Eur. L. 203 (2002)

Stephen Skinner. Ph.D, European University Institute, Florence (Italy); Lecturer in Law, University of Warwick (UK).

The treaty provisions for cooperation among the Member States of the European Union (EU) on policing are a clear illustration of the tension at the heart of EU integration and may be indicative of its limits. On the one hand, Member States perceive a growing threat from crimes as diverse as drug trafficking, terrorism and art theft, for example, in an EU without internal frontiers. This, they consider, requires a cooperative and coordinated policing response and stems from a growing political focus on “law and order” at both the national and international levels. On the other hand, the perceived need to cooperate on policing is counterbalanced by political concerns on preserving national sovereignty and protecting police traditions.

With antecedents and parallels in Interpol and the Schengen system, police cooperation among the Member States of the original European Economic Community (EEC) gained recognition in the 1992 Treaty on European Union (TEU) under the so-called Third Pillar on Justice and Home Affairs (JHA). It has remained a Third Pillar matter following the 1997 Amsterdam Treaty, which transferred other JHA matters to the First Pillar legal order of the European Community Treaty (ECT). The 2000 Nice Treaty, if fully adopted and implemented, may further adjust some procedural aspects of police cooperation under the Third Pillar with a view to EU enlargement. These   Third   Pillar  police  cooperation provisions are “intergovernmental,” characterized by flexibility and wide margins of discretion for national authorities. They are distinct from the institutional and legislative frameworks of the mainstream ECT order and are complicated by the fact that the perceived problem of crime in the EU itself lacks a clear definition and basis. Such measures, therefore, largely involve the establishment of systems for exchanging information relevant to police activities and the development of policies to facilitate inter-agency assistance across Europe. As a result, the treaty provisions lack clarity of focus, are increasingly complex and favor governmental discretion, thus compromising democratic safeguards. The persistence of these problems may indicate that the EU, in trying to embrace one of the central bastions of state authority, police powers, is biting off more than it can chew. As Harding has commented, while the unclear rationales and objectives of European cooperation regarding crime control lead to unclear legal provisions and mechanisms of uncertain efficacy, it must not be forgotten that “[d]emocratic and judicial oversight is of no less importance than effective measures of control.” Despite rhetorical claims to Vrotect citizens’ rights and interests in “an area of freedom, security and justice,” changes since 1992 in the EU Third Pillar relating to police cooperation have brought limited progress towards incorporation of the basic democratic principles of accountability, openness and the protection of citizens’ rights in the treaty framework. These principles are among the core common values that form the basis of liberal and democratic legal systems in Europe and, as such, demand proper recognition and respect. Although an argument can be made that in international cooperation State action has a more direct impact than legislative texts, this article draws attention back to the treaties, which are the primary source of law and the principal indicators of Member State intentions in the EU. It explores the background to and development of Third Pillar policing provisions in the European treaties, along with their shortcomings, and begins by addressing the uncertainty and political sensitivity of police cooperation in the EU. The article concludes by considering whether police cooperation reveals the limits of EU integration.