Monday 4 December 2006, by Balzacq Thierry
Directorate-General Internal Policies
Policy Department C
Citizens Rights and Constitutional Affairs
From a Prüm of 7 to a Prüm of 8 +: What are the Implications ?
The purpose of this policy brief is to examine the implications of the Treaty of Prüm, focusing on its goals and instruments. It is organised into three sections. The first of these seeks to analyse the rationale of the Treaty by contrasting it with the development of the Schengen Convention. Section 2 studies the legal basis of the Treaty of Prüm in order to assess to what extent was enhanced cooperation considered a viable option for the signatories of the Treaty of Prüm. Finally, section 3 investigates the institutional and substantive consequences of the Treaty.
This note was requested by: The European Parliament’s Committee on Civil Liberties, Justice and Home Affairs.
This paper is published in the following languages: EN, FR.
Author: (Thierry Balzacq, Centre for European Policy Studies, CEPS)
Manuscript completed in (July 2006)
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The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament.
From a Prüm of 7 to a Prüm of 8+:
What are the Implications?
The main objective of the Treaty of Prüm is to step up the fight against terrorism, illegal migration and cross-border crime. The essential instrument is the exchange of information, including biometric identifiers, among signatories. Few would disagree that such a project is in line with what EU citizens want. However, it has to be highlighted, from the outset, that the mechanism of information exchange promoted by the Treaty of Prüm pre-empts and, to a certain extent, distinct from the ‘principle of availability’, which is regarded by almost all of the EU institutions as the central instrument of the Hague Programme. This is, I think, the main problem of the Treaty of Prüm. In other words, the Treaty of Prüm should be read primarily with a view to its effects on the principle of availability - a major innovation in the construction of an Area of Freedom, Security and Justice in the EU. In brief, I argue, establishing a system of co-operation – of a lesser quality – in a domain that is already foreseen by the EU raises not only legal problems (e.g. the principle of loyalty), but also political challenges (e.g. the problem of legitimacy).
Thus, the purpose of this policy brief is to examine the implications of the Treaty of Prüm, focusing on its goals and instruments.  It is organised into three sections. The first of these seeks to analyse the rationale of the Treaty by contrasting it with the development of the Schengen Convention.  Article 39 (5) of the Schengen Convention allows member States to conclude such agreements. However, when the competences included in a multilateral agreement are already part of the EU Treaty, how do we assess the added value of such moves? Section 2 studies the legal basis of the Treaty of Prüm in order to assess the feasibility of enhanced cooperation. Finally, section 3 investigates the institutional and substantive consequences of the Treaty.
1. The Treaty of Prüm and the Schengen Model
The Treaty of Prüm bears the marks of Schengen. This explains why some have dubbed it the Prüm ‘Convention’ or ‘Schengen III’. Note that all of the signatory states have participated both in the Schengen Agreement 1985 and the Schengen Implementing Agreement 1990 and played a central role in intergovernmental cooperation in fields of central interest and importance to the EU. Note, too, that signatories are participants in the decision taken in 1997 in the context of the intergovernmental conference which led to the Amsterdam Treaty and to the insertion of the Schengen acquis into the EC/EU treaties. Prüm, then, is a new form of ‘Schengen’ process.
The preceding comments suggest that in examining the method of Prüm, it is important to be clear about the dynamics of Schengen. The major objective of Schengen was the abolition of all border checks across Europe. The context was, however, dominated by the fear that such sub-Union agreements could institutionalise a Europe of ‘variable geometry’.  To reduce these concerns, Schengen members therefore framed the Convention as a ‘laboratory’ for Europe, the goal of which was, ultimately, to push forward European integration. In Charles Elsen’s words, «The Schengen founders would have not worked in vain, but they would have showed a possible and feasible way, set up a laboratory for Europe and, thus, given a considerable push forward in the construction of Europe» .The Commission effectively echoed this idea of Schengen as a laboratory. This emerges most strongly in Jacques Delors’s response to a written question on that issue when he says: «The salutations arrived at by the Schengen group are an inspiration to Community bodies.»  For an external observer, this support is hard to understand. One would not expect the ‘guardian of the Treaties’ to confer legitimacy to an initiative that, in many respects, challenges its authority.
The Treaty of Amsterdam confirmed this process by appending a Protocol on Schengen in the EC and EU Treaties.  Art. 8 of the Protocol provides that the Schengen acquis must be accepted in full by all candidates for admission. In other words, the Treaty of Amsterdam creates the possibility for a limited number of member states to co-ordinate their activities on specific issues within the limits of what is called ‘enhanced co-operation’. As for Schengen, the results of enhanced co-operation have become binding for all state candidates for admission.
Prüm started off with seven members, five of which were initial Schengen signatories. Further, like Schengen, its avowed aim is to play a pioneering role in the integration of the EU. Finally, in line with the spirit of Schengen acquis, Prüm leaves open the possibility for the remaining 18 member states to adhere to its rules and practices. This last point may turn out to be impracticable for at least two reasons. First, Prüm was initially just one member state short of the number specified in the EU Treaty as necessary to trigger the mechanism of enhanced co-operation. Moreover, enhanced co-operation is not automatic (article 40 TEU). Enhanced co-operation requires approval by a qualified majority in the Council of Ministers and the EU Commission has to assess whether Prüm is compatible with other institutions governing the EU. Yet, even if these conditions were met, there will still be no guarantee that the provisions defended by Prüm will be integrated in the Union as such.
In the Preamble, the contracting Parties declare they wish Prüm to become part of the EU acquis. In fact, under the terms of the Treaty of Nice ratified in 2003, acts and decisions resulting from enhanced cooperation «shall not form part of the Union acquis. 
Finally, there is a contextual problem. Schengen took shape in something of an institutional vacuum. The Treaty of Prüm was signed after the terms of construction of an EU Area of Freedom, Security and Justice were agreed upon. That political context makes a difference, a difference which may produce detrimental effects for the integration of Europe.
2. To what Extent Could Enhanced Co-operation Have Been a Possible Option?
The signatories have chosen a multilateral agreement, outside the EU framework, in order to fight against illegal migration, cross-border crime and terrorism. They had, however, two other options. One, they could have portrayed the Treaty as being a common initiative of EU member states, based on article 34 TEU. Two, the signatories could have used the mechanism provided by enhanced co-operation. While article 34 may easily be dismissed as simply non applicable, the fact that signatories have not given a try to the legal basis offered by enhanced co-operation is more intriguing.
Enhanced co-operation is governed by general conditions set out in articles 43-45 TEU and by specific rules, depending upon the field in which co-operation is envisaged – articles 27-27A, 40A-40B TUE; articles 11-11A TEC. More specifically, article 43, for example, provides that «Member States which intend to establish enhanced cooperation between themselves may make use of the institutions, procedures and mechanisms laid down by this Treaty and by the treaty establishing the European Community…» However, to be valid, enhanced cooperation must comply with specific rules, four of which are most relevant in this context. The proposed cooperation:
is aimed at furthering the objectives of the Union and of the Community, at protecting and serving their interests and at reinforcing their process of integration;
remains within the limits of the powers of the Union or of the Community and does not concern areas which fall within the exclusive competence of the Community;
involves a minimum of eight member states;
does not affect the provisions of the Protocol integrating the Schengen acquis into the framework of the European Union.
With the signature of Italy, enhanced co-operation has become theoretically possible. There are, however, two caveats that need to be set out. First, enhanced co-operation is not automatic; nor is it compulsory. Instead, it is a possibility open to a group of at least eight member states to use legal instruments and institutions of the EU in order to set up co-operation in a targeted domain. In other words, member states may decide to use forms of co-operation other than those set out in the Treaties. By doing so, member states should nonetheless comply with EU law. Second, the proposed co-operation should not «affect the provisions of the Protocol integrating the Schengen acquis into the framework of the European Union».
At this juncture three problems arise as to whether the field of the proposed co-operation is part of the Schengen acquis. This distinction is of key importance. First, articles 20-23 of the Treaty of Prüm dealt with issues that fall, ratione materiae, within the Schengen acquis. And the primary characteristic of the Schengen acquis is its inviolability. In this case, it would be difficult for the Prüm members to trigger enhanced co-operation as co-operation in the fields covered by articles 20-23 is already a form of enhanced cooperation in the sense of article 43 TEU. To put it another way, member states cannot embark on an enhanced co-operation in order to develop the Schengen acquis. Second, if the aim of the Treaty is to further forms of co-operation foreseen by the Schengen acquis, it may then be argued that it is not incompatible with that acquis. Third, for measures that are not yet covered by EU legal provisions, article 47 (1) of the Treaty of Prüm provides that «European Union law shall take precedence in applying the relevant provisions of the Convention».
3. Institutional and Substantive Implications
Three ideas encapsulate the main difficulties and implications of the Treaty of Prüm: institutional regression, fragmentation and legal pre-emption. I briefly address each in turn below.
3.1. Institutional regression.
The Treaty of Prüm takes us back to the pre-Maastricht era, during which intergovernmentalism was the norm. The problem with this method is that it lacks transparency. Opening an interparliamentary assembly in October 2005 (i.e. three months after the signature of Prüm), Josep Borrell, President of the European Parliament, admitted that he had never heard of the Prüm Treaty.  This is revealing of the way the Convention was negotiated and signed: that is, without any Parliamentary oversight. The intergovernmental nature of co-operation in the field of security in the EU inhibits democratic checks where a treaty is presented, already negotiated, for ratification or rejection and changes are not permitted. In this sense, we could argue that the Prüm Treaty ignores the European Parliament just at a time when it is achieving a more central role in law-making in this field, as called for in the provisions of the EU Treaty. It will undoubtedly be a difficult experience for the European Parliament to witness its power to participate in law-making in the area diminished as the field over which it is to provide oversight is moved, once more, into an intergovernmental arena.
The Treaty of Amsterdam, the Tampere European Council and the Hague Programme set the tone for a common Area of Freedom, Security and Justice. The Treaty of Prüm creates a new – electronic – border between the seven (now eight) signatories and the other EU member states. This assumption has a crucial consequence in practice. For example, in the field of illegal migration, article 23 provides for assistance with repatriation measures. To start with, this area is the subject of a Council Decision (2004/573) and a Directive (2003/110). In Prüm, however, the principle asserted is that of retention of sovereignty by the signatories over activities of repatriation occurring on their territory. Indeed, in contradiction to some of the moves under consideration at the EU level that the decision of repatriation should have consequences across the common territory, Prüm breaks up the common EU territory into its national constituent blocs once again for the purpose of determining the legality of repatriation. In this context, repatriation via another party’s territory is to be resolved by negotiation in compliance with the law of the state through whose territory the repatriation is to take place.
3.3. Legal pre-emption
The Treaty of Prüm was signed just three months before the Proposal for a Council Framework Decision on the exchange of information under the principle of availability was tabled.  The principle of availability is not a new idea. It has been around with us since before the Hague Programme agreed upon in November 2004. This is important as it points to the idea that Prüm signatories knew that the principle of availability will profoundly transform the data exchange landscape of the European Union. The difference between the Treaty of Prüm and the principle of availability is substantial. In the Hague Programme, the Commission proposed to substitute the principle that data belongs to state authorities (subject of the law to protect the data subject) and can only be transmitted to another member state on the conditions established by the state that holds the information with the principle of availability. Under the principle of availability, therefore, the authorities of any member state would have the same right of access to information held by any other authority in the Union as applies to state authorities with the state where the data is held. Thus, the element of national settlement on the collection, retention and manipulation of data expressed in national constitutions is transformed into an EU-wide right of use of data. In other words, the national border is removed from the principle of data collection, retention and use. By contrast, the Treaty of Prüm steps back from the principle of availability as data, in this context, remain the property of the state, not constitutive of a common Area of Freedom, Security and Justice wherein national sovereignty on data is relaxed. Moreover, Prüm members will exchange less data than foreseen in the principle of availability. Finally, and more fundamentally, while for the principle of availability direct access to the date is the rule, the Treaty of Prüm intimates that indirect access should be the norm.  Thus, the Treaty of Prüm, despite assertions to the contrary, does not provide the «highest possible standard of cooperation». The principle of availability does.
For the contracting Parties, the Treaty of Prüm brings about, a flexible co-operation, a quicker decision making process and a greater efficiency. However, this policy brief has tried to show that these positive aspects do not fully outweigh the weaknesses of Prüm. To do this, we have followed three central and related goals: First, to show that most of the provisions of the Treaty of Prüm are not, ratione materiae, incompatible with EU law. Here, I have argued that they either duplicate or contribute to furthering co-operation in the fight against terrorism, illegal migration and cross-border crime. Second, to examine the feasibility of establishing enhanced cooperation in fields that are an integral part of the Schengen acquis. This policy brief has reached the conclusion that this would be difficult to achieve. Third, to explore the main problem raised by the Treaty of Prüm and its effect on EU integration, i.e. its relation to the principle of availability. Here, I have argued that the Treaty of Prüm pre-empts and waters down the principle of availability and does not, in comparison to the mechanism foreseen in the Hague Programme, constitute the highest standard of information exchange.
In a discussion with one of the civil servants who took part in the working group of Prüm, I was told that the Treaty of Prüm was negotiated and signed because, inter alia, there was no guarantee that the principle of availability will be adopted. This argument is difficult to uphold. First, if this were the case, then, the exchange of information promoted by the Treaty of Prüm should be at least of a similar quality as that put forward by the principle of availability, or higher; and, the range of data collected and exchanged should be similar or broader. Second, as the signatories of the Treaty of Prüm have committed themselves to setting up the highest standard of co-operation in the field of information exchange, it should, as a consequence, be expected that the members of Prüm, among which are the biggest EU member states, would be keen on advancing a proposal which substantially improves on Prüm and strengthens trust among member states, i.e. the principle of availability. Failure to do so will support the argument that Prüm was swiftly signed in order to block the principle of availability, which was perceived by some as eroding the sovereignty of EU member states in a domain that is vital for EU security – ownership of information.
 T. Balzacq, D. Bigo, S. Carrera and E. Guild, Security and the Two-Level Game: The Treaty of Prüm and the EU Management of Threat, CEPS Working Document No. 234, January 2006; F. Dehousse and D. Sifflet, «Les nouvelles perspectives de la cooperation de Schengen: Le Traité de Prüm», Royal Institute for International Relations (IRRI KIIB), 8 April 2006.
 In this brief, The Treaty of Prüm, the Prüm Treaty, Prüm and the Treaty are used interchangeably.
 A Stubb (2002), Negotiating Flexibility in the European Union: Amsterdam, Nice and beyond, London: Palgrave; A. Wiener, «Forging Flexibility: The British ‘No’ to Schengen», European Journal of Migration and Law, Vol. 1, No. 4 (1999).
 Our translation. In French : «Les bâtisseurs de Schengen n’auront pas travaillé en vain, mais ils auront montré une voie possible et realisable, crée un laboratoire d’essai pour l’Europe et, en definitive, done un formidable coup de main à la construction européenne.» Charles Epsen, quoted in W. van der Rijt, «Le fonctionnement des institutions Schengen : ‘Pragmatisme, toujours’,» in Monica den Boer (ed.), Schengen’s Final Days ? The Incorporation of Schengen into the New TEU, External Borders and Information Systems (Maastricht: European Institute of Public Administration, 1998), p. 65.
 Reply to Written Question 2668/90, O.J. C144/11.
 E. Philippart, «Optimising the Mechanism for ‘Enhanced Cooperation’ within the EU: Recommendations for the Constitutional Treaty,» CEPS Policy Brief, No. 33 (May 2003).
 Article 44 (1) TEU. For an assessment of enhanced cooperation after the Treaty of Nice, see Bribosa Hervé, «Les coopérations renforcées au lendemain du traité de Nice», Revue du Droit de l’Union Européenne, No. 1 (2001), pp. 111-171.
 Josep Borrell, Opening Speech by the President of the European Parliament. Parliamentary meeting at the initiative of the European Parliament and the United Kingdom on «Liberty and Security: Improving Parliamentary Scrutiny of Judicial and Police Cooperation in Europe», Brussels, 17 October 2005.
 Proposal for a Council Framework Decision on the exchange of information under the principle of availability, COM(2005)490 final, Brussels, 12.10.2005.
 I therefore disagree with the view expressed by JUSTICE, a UK NGO which asserts: «In respect of information exchange mechanisms, this convention, while more limited in scope, is not dissimilar from the provisions contained in the draft availability principle Framework Decision». Emphases added. Available at : http://www.parliament.uk/documents/upload/G6EUF190506.doc. Accessed on Monday 24 July 2006.