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Statewatch News Online: EU: COSI - Standing Committee on Internal Security rescued from the debris of the EU Constitution

28 March 2012

EU: COSI - Standing Committee on Internal Security rescued from the debris of the EU Constitution

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In Statewatch vol 15 no 1 concern was expressed as to the role of the proposed Standing Committee on Internal Security (COSI) to be set up under Article III-261 of the EU Constitution. Now that it seems very unlikely that the EU Constitution will be adopted it might be assumed that COSI would not see the light of day - on the contrary it is one of the first projects to be rescued.

The EU Constitution in Article III-261 said that a "standing committee" should be set up to ensure "operational cooperation on internal security". In February the Luxembourg Presidency produced a "Discussion paper on the future Standing Committee on Internal Security (COSI) - Constitutional Treaty,
Art III-261" (EU doc no: 6626/05, 21.2.05).

In the Hague Programme on justice and home affairs adopted on 5 November 2004 it was agreed that a six-monthly interim committee should be set up:
to prepare for the setting up of the Committee on Internal Security, envisaged in Article III-261 of the Constitutional Treaty. The first meeting was held on 13 May 2005 and the report on the discussion was circulated by the Council Presidency on 8 June 2005. However, the "Subject" of this report was significantly changed to:

"Summary report on the first six-monthly meeting for coordination of operational cooperation, as foreseen by the Hague programme"

There is no mention in the subject nor the text of the EU Constitution or its Article III-261, instead the Hague programme is presented as the authority for the meetings of the interim COSI. So why the change? Between the meeting on 13 May and the report on 8 June the referendums on the EU Constitution in France (29 May) and the Netherlands (1 June) had rejected it.

The Council of the European Union (the 25 governments) of course has the power to set up any committee it chooses - though any such committee will be subject to the current rules of accountability and access to documents (issues which were not at all clear in Article II-261).

The membership of COSI is one of the subjects under discussion. At the moment it is comprised of the chairs of the Article 36 Committee (policing and judicial cooperation) and the Strategic Committee on Immigration, Frontiers and Asylum (SCIFA) and representatives of the Commission, Europol, Eurojust, the Police Chiefs Task force, the Joint Situation Centre (SitCen) and the newly-created European Border Agency (EBA). Surprisingly it appears from the record of the 13 May meeting that "DG H of the Council Secretariat" (full-time officials from the Directorate-General on justice and home affairs) is also at the table as a policymaker rather than simply servicing the committee's work. Also worthy of note is the fact the neither the Police Chiefs Task Force nor SitCen have any legal basis for their existence.

In the report on the first six-monthly meeting of the "interim" COSI the Commission expressed the view that COSI should "prepare decisions of the Council" and "not a day-to-day tool for operational cooperation" (EU doc no: 8989/05). Thus its role should be: "setting out a legislative framework for operational action" but with "no link" to "budgetary issues". The Police Chiefs Task Force said it should be "integrated into COSI" as its officers "will be implementing the operational cooperation". While SitCen said it had no operational capacity but: "SitCen expects to be tasked by COSI as well as to provide it with spontaneous reports".

The UK, the incoming Presidency, took a quite different view on COSI composition saying it should be a high-level committee: "bringing together senior law enforcement specialists and Ministers' advisors from capitals" (see Statewatch vol 15 no 1). Similarly the UK and Europol said COSI should set the
"priorities for operational cooperation".

Finally, the issue of "data protection, fundamental rights etc" was discussed as a "general policy point" (not one specific to COSI) and it was recorded that:

"it might be difficult to entrust a law enforcement body with the specific task of a control authority as well"

In other words should law enforcement agencies be allowed to be accountable “in house” and not subject to any external scrutiny - should they be self-regulating?

Tony Bunyan, Statewatch editor, observes:

"In a democracy worthy of the name such an idea would not even be entertained."

[This article first appeared in Statewatch bulletin, vol 15 no 3/4, 2005]

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Role of new EU Internal Security Committee being decided by the Council - in secret

When the new EU Constitution was being hammered out one of the least contentious aspects (at least amongst those privy to the discussions) was the proposal to create a Standing Committee on operational cooperation on internal security (Article III-261). The first draft of the report by "Working Party X" (on freedom, security and justice) spoke of such a committee dealing with issues "including" policing and judicial cooperation. This then changed to "internal security" – a concept which embraces all the agencies of the state from those who maintain "law and order" and border controls through to the military. Article III-261 says this standing committee is to be setup to:

"ensure operational cooperation [by facilitating] coordination of the action of Member States's competent authorities"

This text seems pretty explicit as to its role, namely "operational cooperation" and "coordination of.. action". However, a paper circulated by the Luxembourg Presidency of the Council of the European Union (the 25 governments) to the Informal meeting of Justice and Home Affairs Ministers, 27-29 January 2005 says, quite extraordinarily:

"The exact nature of the committee cannot be discerned by reading Article III-261"

If the "nature" (ie: the job) of the committee cannot be read into the text of the Constitution, where can it?

The Presidency paper asks whether the committee should be a "technical committee with an exclusively operational brief" or should it play a "legislative" role as well. However, the press release from the meeting noted "diverging points of view" on its role.

By early 2005 the new committee had acquired the acronym, "COSI" (Standing Committee on Internal Security). Just prior to this informal meeting the Commission said that operational cooperation had "made least progress" and that:

"The COSI should not have legislative tasks" (EU doc no: 5573/05, Note from Council General Secretariat to the Article 36 Committee)

By the end of February concrete options on the role of COSI were put forward for discussion in the Article 36 Committee (high-level officials from Interior Ministries). An unpublished “Discussion paper” from the Presidency set out a "definition" of “internal security” by “combining” different Articles from the
Constitution. “Internal security should at least include”:

"· the prevention and combating of crime,
· the prevention of the terrorist threat
· intelligence exchange
· public order management
· the prevention and combating of criminal offences such as illegal immigration and trafficking in persons
· the provision of an integrated management system for external borders as a major factor for preventing (certain) forms of crime within the EU
·and crisis management with cross-border effects within the EU"

(EU doc no: 6626/05, emphasis added)

COSI’s role is not to be:

"directly in charge of conducting operational activities but shall ensure that operational cooperation is promoted and strengthened. This could be described as providing the appropriate framework, tools, policy, implementation and evaluation to allow/oblige the competent authorities to cooperate in areas of common interest or threat.." (emphasis added)

COSI should be informed of “shortcomings or failures” (including through evaluations) and have: “a mandate to direct action in order to address these shortcomings”

The paper (6626/05) then sets out three “Options” for the role of COSI. The first “option” would limit COSI’s role operational planning and coordination – as set out in the Constitution.

The second “option” would give COSI: “strategic functions” including drawing up an “EU plan for internal security” plus “solidarity clause related functions “ (going to the aid of other member states) plus operational cooperation, evaluation and external relations – everything except “legislative functions”. Under “option 2” legislative functions would be carried out by working parties but there would still be a need for a “specialised committee” to coordinate “all legislative work related to “internal security”” to meet “the needs identified by COSI”.

The third “option” would see COSI carrying out all the functions under “option 2” plus a legislative function.

The paper proposes that the membership of COSI should be “residential”, jargon for a single, named, permanent representative from each government. This “standing” committee would then be assisted by “relevant experts” depending on the issue. Earlier ideas as to composition suggested a central role for several agencies – Europol, Eurojust, Strategic Committee on Asylum, Immigration and Frontiers and the Police Chiefs Task Force – their role now looks like being advisory.

Tony Bunyan, Statewatch editor, comments:

“It is quite outrageous that the role of the new EU internal security committee is being decided in secret by the Council. If it becomes a high-level legislative body as well being in charge of operational matters a whole swathe of decision-making and practice will be removed from democratic debate and discussion.

Under the Constitution the European Parliament and national parliaments are only to be “kept informed” of this Committee’s work – which means there will be no parliamentary scrutiny of individual proposals or reports, simply very general summaries every now and again. If the Council gets its way we will see an EU Interior Ministry outwith any democratic control”

[This article first appeared in Statewatch bulletin, vol 15 no 1, 2005]

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EU: SITCEN’s emerging role

Another indication of the growing executive power of the Council is the role of the Joint Situation Centre (known as SitCen). Last year Mr William Shapcott, Director of SITCEN, gave evidence to the House of Lords Select Committee on the European Union’s examination of EU counter-terrorism preparation (14 November 2004). He said that SITCEN “had existed as a sort of empty shell” until 11 September 2001 but that soon after the sharing of intelligence and assessments on external relations started. Later, in 2004, it was decided to extend the scope of SITCEN to cover internal security too especially through national security services (Solana announced as much in July 2004, see Statewatch vol 14 no 5).

What is revealing in Mr Shapcott’s answers to the committee is the status of SITCEN – it is not as we might have implied previously part of the emerging military structure:

"the Situation Centre has always been in the [General] Secretariat. We have been quite careful, even from the beginning, not to formally have it in the Second Pillar. We have played with Solana’s double-hatting. He is the Secretary General; we are attached to his cabinet, so we are squarely in the Secretariat General.. [and] Solana has contacts with Justice Ministers which he never used to have. I now go to a host of JHA Committee meetings which I
would never have dreamt of a long time ago."

Mr Shapcott also told the committee that SITCEN was looking forward to the new Constitution coming into force as this would give it direct access to the 128 EU missions based around the world. At the moment they are “Commission delegations” but “the Commission does not like us [SITCEN] to task them”. Under the Constitution the “External Action Service” will come into being and “we can task them, we can steer their activities”. Under the Constitution Mr Solana, currently the Council’s “High Representative” common foreign and defence policy, will become the EU Foreign Minister.

The Council is clearly bidding to take over the Commission’s current external relations role, though many in the European Parliament are not happy with this idea.

[This article first appeared in Statewatch bulletin, vol 15 no 1, 2005]

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