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C!1Ap·ŢER 19

•

CommLlnitarization with Hesitation

Sandra Lavenex

lntroduction 458 The proliferation of selni-autonOlTIOUS ."; o"· -

The institutionalization of justice and agencies ancl bodies 467 .. ;

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hOlne affairs coopera tiOl1 459

lntergovernillental fornlaliza ti on:

Maastricht's Lhird pillar 460

Uneasy C01lllllunitarization: the TreaLies

of Amsterdan1 and Nice 460

Kevaetors . J

Organization and capacities of EU

institutions ....

. Thereinvention of'

.' in tergovernn1cntalism •

• · •. ·.m·.··Summary

463

463

. 466

The flo\v of paliey 470

Asylunl and immigration polie)' 471

Police and judicial cooperatioll in

crinlinal lllatters 473

The agenda for reforn1 475

COllclusiollS 476

FU RTH ER R EADJ N G

--.. ..... -, .. , . .. ' ~,.. ."~ ..

477

.... The control 'ofentry ta, a nd . residence with i n, . national territory, citîzenshipi civil . - . . , ...

. .

.' .... liberties,law,justice, and order lie very clase to thecoreofthe state. Nevertheless,the

··.permeabilityofborders.in Europe has prompted cooperation amonggovernments, . --

and in less than ,twenty years, ·justîce and home affairs (JHA) have moved from a

peripheral aspect ta a foc~l'point of European integration. Cooperation among na­

tionaLagencies .·concerned·with combatîngcrime,fighting .terrorism,.managing bor~ .. '

·.···.··,ders,i:mmigration 'and ·.asylum,·.·and •. with 'tl1e judicîa! .and···legalimplications.·()frising. . -.. .

cross-bardermovement, has thusbeen 9 radua I Jy·movedfromlooseintergovernmen-·

.. tai cooperation -to'more supranatîonal governance within the European UnÎon{EU) .

. These deve!opments,however, continue to bemarked by reservationsand arguments .

aboutthe roleofEU institutions, resulting in ahybridinstitutional structurerand poliey

measureswhichareriddled with delicate compromisesand flexiblearrangements

. among themember governments.·

. . ". . . . . - .: .

· .. - . . . : . ; .:: .

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458 Sandra Lavenex

Introduction

The an1bition involved in creating an 'arca of frcedom, security and justice' (AFSJ)

vvithin the EU may be c0I11pared with thal which propelled the single n1C1rket (sec

Chapter 5). Ihe 1997 Treat)' of Amsterdam (IoA) declared the AFSJ a fundamental

EU objective CArt. 2 IEU), and justice and home affairs UHA) has been one of the

busiest policy areas, vvith the Council adopting an average of ten texts a month in

thi5 field since 1999 (Monar forthcoming). ln contrast to econolnic integration, ho\v­

ever) which bas becn at the core of the European integration projectJHA touches on

many issues that are deeply entrenched in national political and judicial systelus and

have strong affinities to questions of state sovereignty: since the seventeenth century,

the state has drawn legitinlacy from its capacity to provide security for its inhabit­

ants (Mitsilegas et al. 2003: 7). Cooperation in]HA also has direct in1plications for -

democratic values and for the balance between liberty and security in the l}nion and

its member states, and security considerations have hitherto received more attention

than those relating ta 'freedom' or justice'.

Ihe development of a common response to immigration and asylum-seekers, the

joint management of the external borders, the increasing coordination of national

police forces in the fight against crime, the'approximation of national crinlinal and

civillaw, and the creation of specialized EU bodies such as Europal, Eurajust, and

Frontex to deal \\Tith these matters thus constitute a l1e\v stage in the trajectory

of European integration. These processes reflect the increasing involven1ent of EU

institutions in core fUllctions of statehood and, conco111itantly, the transforn1ation of

traditional notions of sovereignty and democracy in the member states.

Notwithstanding the strong symbolislll inherent in the creation of a European

area of freedoTI1, security, and justice, the EU 15 [ar fronl having unified: integrated

conlnlon policies in ]HA. As in ather areas of EU policy integration has been

increlnental, riddled with delicate cOlllpr0111ises and reservations by luember

governlnents. Reservations about transfers of responsibilities ta the EU and the

donlestic sensitivity of issues such as imllligration and organized crilne in national

political debates and electoral campaigns have sustained transgovernlnental gov­

ernance as the dominant mode in ]HA. Transgovernmentalism combines elen1ents

of the traditional 'Community nlethod' with more intergovernn1ental ones: it is

characterized by the relative weakness of legal harmonization and a foeus an 1110re

operational aspects of coordinatiol1 bet\veen national authorities. This has gener­

ated a peculiar pattern of sharcc1 cOlllpetences bet\\'een sub-national, national, ancl

European levels of govcrnance, with lhc continuity of a significant levcl of coopera­

tion outside the EU1s fonnal institutions.

This chaptcr starts with a shon revie\ll,' of the enlcrgence and insrir.utionalization

of]HA cooperation in the EU treaties 1 before presenting its key aClors and institu­

tional set-up, and discussing the lllain policy developluents in re1ated f1e1cls and

recent proposals for reform.

.... - , . . . , .. '.;:r- .. ~. , .-.. ,

. ... : ...... ~ .. :. ,.,. .

Justice and Home Affairs 459

The institutionalization of justice and home affairs cooperation

The dynan1ics of this ne\v area of European integration reside both within and outside

the EU and its member states. One important interna1 motor has been the spill-over

from the realization of freedom of n10veluent in the single market (see Chapter 5).

The decision in the 1985 Schengen Agreenlent to extel1d the elimination of internal

border controls that had been in place among the Benelux countries since 1948

to the five contracting meluber states Belgiuru, France~ Gernlany, Luxelnbourg,

and The Netherlands spurred concern about safeguarding internal security and

prolnpted closer cooperation on questions relating to cross-border phenomena such

as ilTIluigration, organized crinle, and drug trafficking. The surge of asylu111-seekers

from outside \vestern Europe in the 1980s which followed the closure of legal chan­

nels for econOlllic ilnmigration, the phenomena of organized crime and terrorisffi:

and the enel of the cold \-var: \vhich opened the EU's previously closed eastern bor­

der to hopeful immigrants and criluinal net,vorks, generated external pressures for

closer cooperation.

Ihi5 intensified cooperation could draw an informal caoperation among security

senrices and la\v-enforcelnent agencies that had developed since the 1970s. These

included the Pompidou Group on drugs) set up in 1972 withiTI the wider Council

of Europe) and the Trevi Group created at the December 1975 European Council in

Rome ta coordinate anti-terrorist work among EU govemments faced with lri5h,

Italian: German, and Palestinian groups operating within and across their borders.

After 1985 Trevi's mandate \vas extended to other issues of cross-border public arder

and serious international crill1e such as drug trafficking, bank robbery, and arms

traffi c king.

In 1990 t\-va important international treaties set the guidelines for [uture European

cooperation. The Schengen hnplementing Convention (SIC) devised \colnpensatory

measures' for the removal of frontier controls, covering asyluln, a common visa

reginle, illegal in1migratiol1: cross-border police C0111petences, and a COInmon

computerized system for the exchange of personal data (Schengen lnformation

Systen1 (SIS»). The Dublin Convention on Asylum, concluded among all EU lnember

states: ineorporated the asylum rules a1so included in the SIC and established the

responsibility of the state in \vhjch an asylun1-secker 11rs1. enters for the exanTination

of an 3svluTI1 claim. ,

Ihus: prior to lhc [ornlal establishlncnt of cooperation in j ustice and hOlile

affairs in the 1992 ("l\'1aastricht) Treaty 011 European Union (IEU) an extensivc

net\vorkofcooperation had alreadyc1eveloped which opcrated both outsideand under

thc overall atlthority of rhe European Council. Cooperation took place on seveTal

political ancJ executive levcls, ranging fron1 ministers through dircclors-gencral of

thc relcvanllninislries ta lniclcl1c-ranking civil servants, and reprcsentatives of poliee

460 Sandra Lavenex

forees and otheT agencies. Cooperation an10ng the init.ially five Schengen states vvas

to turn into a 111otor for and (laboratori of integration and had an influential in1pact

on thc su bsequent comn1unitarization of cooperation (1'vtonar 2(01).

Intergovernmental formalization: Maastrichfs third pillar

During the intergovernmental conference (IGC) leading to the TElT \ the Dutch

Council Presidencyls draft, which proposed to bring bath the common foreign

and security policy (CFSP) and ]HA into a single integrated structure l \vas

dismissed and instead [oreiun policv and internal securitv relnained prima-, l b) )

rily intergovernmental; in separate (pillars' (on CFSP see Chapter 18). Asyluill

policy, rules and controls on external border-crossing, in1111igration policy~ and

police aud judicial cooperation in civil and crhuinal lnatters \vere il1cluded as

(matters of COn11TIOn interest' in the third pillar of the IEU. In this vvay the exist--ing network of committees '}las fonnalized without transfonning the frame\vork

of authority and accountabihty (see Lavenex and \Vallace 2005).

The loose intergovernmental structure clid not prevent]H.A from becoming the

most active field for meetings convened under the Council of l'viinisters in the late

19905. The frequency and intensity of interaction, especially in the area of police

cooperation and organized crÎlne, induced a transfonnation of the ·working practices

of interior ministries and of police forees, which had remained among the Ieast in­

ternationally minded \vithin national governments, and led ta the emergenee of an

intensive transgovernnlental network (see Chapter 4).

By the 1996-7 IGC, the third pillar hacl developed an extensive set of instruments

and institutions. Europol \vas taking shape as a coordinating agency for coaperation

aUlong national poli ce forces, even though the Europal Convention had not yet been

ratified by aU lllember states. Four comnl0n databases ""vere being set in place: the SIS

\vas already up and running~ the CUstOlllS Inforn1ation Systelu \vas being conlpu terizecL

and the Europollnforn1ation Systen1 aucl Eurodac, the finger-plint database for asy1u1l1-

seekers, were being developed. Ministries ofjustice \vere dra\vn in 1110re 510\\71)'; it \vas

not until the revival of the concept of a European judicial Arca, after the IoAl that

justice l11inistries began ta be drawn inta a sin1ilar European netvvork.

Uneasy communitarization: the Treaties of Amsterdam and Nice

Thc cun'ent fran1ework of cooperation in ]HA \-vas shapccl by the treaties of

An1stcrJan1 and Nice. This frame\vork, vvhich shifted parts ofJl-IA ta the C01TI1TIUni Ly

pinar \vhile ll1aintaining a 'streall1lined' third pi l1ar 011 policc ancl juclicial cooperation

in crin1inal n1atters (P.J CCM), reflecls the delicate con1pro111isc bel\veen intensive

transgovernluental cooperatioI1) on the onc hand~ and lhe incr011en lal consolidation

of supranational structures, on the other (sec Box 19.1). Thc 2007 ToL introduces

significant changes to J HAl 1110rc far-reaching than thc change.s Vi,Thich that ucaty

lnakes ta anv other areas of EU 1a\\1 (see section) (The agenda for reform' belo\v). " -

;~

···-"-T.~ ... , . ,

Justice and Home Affairs 461

Changes to JHA 'in the Treaty of Amsterdam ' and the Treaty otNice

Title IV. Articles 61-9 TEC

• Articies 62-3 TEC !Ist 'flanking measures' to be adopted within five years (byMay

2004) to cOMpensate for free movement within the EU, including common proce-,

ciures for contro!s on oersons at the EU's external borders, common visa policy,

common measures on asylum seekers, 'temporary protection' of refugees, and im­

migration polic\"

e .Artic:es 64, 67-8 TEC maintain the intergovernmental decision-making procedures

(shared right of initiative, consultation procedure with the E~ unanimity voting) until

:he end of the transition period in 2004 and impose strict limits on reference to the

ECJ.

• Jitferem opt-outs for Denmark, the UK, and Ireland.

Tîtie VI, Articies 29-42 TE U

• Articles 29-34 TEU provide more detail an 'common actîon' in police and judicial

cooperation in criminal matters, including references to 'operational cooperation'

among la\l'/ enforcement agencies, and collection and storage of data. The ToN speci­

fied in Artic;e 31 TEU the functions of Eurojust.

e Tne opaque iegal ilistruments of the TEU were replaced by well-established, legally

brndirg legallnstrumen~s, but some of these, the framework decisions, are excluded ,

from di!'ect effect.

• ,D,rticles 35-9 TEU reflect parallel unresolved disputes on the involvement of the EU

:nstitutions (Commission, Ep, ECJ) in this field; a lengthy section on the ECJ reflects

sensitivi::y of extending cooperation in legal administration and law enforcement

without providing for judicial review.

• Artic!e 40 TE'J extends provision for 'closer cooperatÎon' among smaller groups of

member states and registers the integrat ion of the Schengen acquis 'into the frame- ,

work of the Europear Union' (set out in more detail in an attached protocol).

The 'An1sterdam' reforms \vere motivated by widespread dissatisfaction with the

\vorking of the intergovernmental procedures. Three \\7eaknesses, in particular, stood

out: anlbiguity about thc legal and constitutional fran1cvvork, evident in the frequeney

wirh \vhich institutional issues were entangled with policy proposals; the 10\,\J den1o­

el'atie accountabjlity anei political visihility of th1S essentially bureaucratic fran1ework

for polie\" Y\Jhic}l allc)\vcd the practice of cooperation to develop far beyond what \vas .. ~ .

reportecl ro rhe European and the national parlianlents or to national pubhcs; anei

1.hc absencc of 11lechanisllls for cnsuring national ratification or inlplenlentation. The

prospect of eastern enIargCll1cnt aelded to the poHtical sahence of the policy fields

covercd by JI-IA cooperation aud exacerbated the lirnits of decision-lnaking structures

based 011 unaninlity

462 Sandra Lavenex

InHuenceu by these consic1cratiollS, the Wcstendorp RefLection Group preparing the 1996 IGC agenda stressed thc imponance of]HA refon11 by fran1ing il as one aspect of 'making Europe Inorc reicvant for iLS citÎzens' (M.onar 1997; lvlcDonagl1 1998). Thcsc ideas inspired the phraseology of thc Amsterd~ln1 Treaty, ,vhich fral11ed ]HA in terms of cstablishing an 'area of freedonl, securitJ: and jusricc'. The. justific8-tion of integration with rcference to citizens' concerns has rernained a 111ajor argu­rnent behind recent rc[ornls, as evident in thc Constitutional Convention and the IGC that prepared the ToL.

The ToA contained substantial changes to the framework for ]l-L:\ (see Box 19.1). A new Title IV transferred migration and other related policies ta the hrst pillar. Poliee cooperation and judicial eooperation in criminal matters remained in a revised aud lengthened Iitle VI TEU~ and the Schengen acquis \vas integrated into the treatjes. It is in1portant to note that the treaties do not provide for cOlnprehensive competences in the sense of creating 'c1assic' EU 'cammon policies', even in the case of the 'common visa pobey' ar the 'common asylum system', \vhich corne closest to this idea.

While prepaling the ground for a greater involvement of sU'pranational actors in ]HA, the ToA broke with the traditional doctrine of the Comn1uniry method by introducing important intergovernn1ental elements into the first pillar while inter­governmental procedures persisted in the third piUar, though the Conlmission \vas now given a right of initiative shared with the member states.

National sensitivities about sovereignty encouraged a high degree of flexibility in the application of common rules. Denn1ark, for example, is a 5chengen member and participates in the free movement area, but is free ta adopt relevant European provisions as internationallaw rather than EU law (thereby avoiding its direct effect and European Court of ]ustice (EC]) jurisdiction). lreland and the UK maintain their opt-out from Schengen and the lifting of interna1 frantier controls, but adhere, on a se1ective basis, and 5ubject to unanilllOUS agreement by 'insiders', to the flank­ing measures of the ]HA acquis sueh as asylum, poliee and judicial cooperation in criminal matters CPJ CCM), and the SIS (Kuijper 2000: 354).

Apart fronl these voluntary exen1ptions [rorn the JHA acquis; the conditionality of the Schengen accession mechanisms adds a more cOlnpulsory fonn of flexibility Not\vithstanding their obligation to adopt the]HA acquis including the Schengen provisions in fuU, the twelvc new Inen1ber states have to first prove their capacity ta in1plelnent effectively these tight border-management provisions before being recog­nized as having achieved what is aftcn referred to as 'Schengen maturity~ by the old 111c111bcrs. At the cnd of 2008 111ne of lhe twelve new 111Clnber statcs had passed thc lest~ but Bulgaria and R0I11ania (becausc of capacity dcficits) and Cyprus (bccause of problen1s relating ta the partirion of the island) currently renlaln ou rside of the integrated border control systen1.

Exisling opt-ouL provisions and cxtended opportunities for enhanccd cooperation under the Treat.ies of Anlsterdalll and Nice have not prcvcntecl individual menlber st~ncs fronl engaging in selectivc foruls of intcrgovcrnmcntal

., ..."..

Justice and Home Affairs 463

cooperat.ion ou lside the rnovisions of rhe lrcaties. The InOSl prolnincnt exarnplc 15 thc Prum Tr:aty c~ncJud.cd an Gernlan i.nitiarive \vith Austria, Belgiu111, France, Luxe~~bourg, fhc (\iethcrlands, ane! Spain in 2005. Facihtating and \videning the condIllons for thc excbange of data incl.l1decl in thc various ]HA databases (sec belo\v) and intcnsifying operational cooperation betwcen poIice, law cnforcenlcnt anei inlInigraL~.on offices, this treaty is also s0l11ctinlcs referred to as <Schengen III': a laboratory for deeper police cooperation among a vanguard of a fe"l member states. As vvith the integration of Schengen inta the Treaty of Amsterdalu the Gernlan CounciJ Presidency in 2007 succeeded in extending these intens'ified form.s .of co.operation to thc rest of the member states by incorporating the Prum prOVISlons Into EU legislation.

, The association of nOn-111enlber states exacerbates the variable geometry of the 'ar~a .of fr~edo_ln, security and justice'. Norway and Iceland, as lneulbers of the pre­eXlsnng NordIC con11110n travel area, have been incIuded within the Schengen area, and are [u11v associated \vith the Schengen and Dubl]'n C t' S' 1 d J

• onven 10115. \vItzer an entirely surrounded by Schengen rnelnbers, but not (like Norway and Iceland) ; me~nber of the ~:Vider European Economic Area, has negotiated a bilateral agreement \VhlC~ e.ntered lnt~ foree in March 2008. Liechtenstein ratified a Schengen!Dublin aSSOClatlon treatv In 2008. -

Keyactors

The fragm~ntati~n ~f cooperation in ]HA is a150 reflected in the ll1ultiplication of actors deahng \vlth lts development; both inside and outside formal EU structures.

Organizatio" and capacities of EU institutions \\iith the ~ew po\v~rs ~ ttributed ta it under the IoA, the C0l11D1ission gradually expanded lts organIza nonai basis in JHA. One of the first moves of the nev,' Presi­dent of the COlTIll1ission (1999-2004), Ron1ano Prodi, was to transform the small Iask Force \vhich had been established 'within the Secretariat of the Commissiol1 under thc TEU into a ne,\' Directorate-General on ]ustice aud Home Affairs, later renamed Jus~ice~ Liberty and Security (DG JLS). It was widc1y recognized that thc task farce, \vlth onlv fortv-six fuJJ-tin1C:' en1JJ1o)'c"'c.s 1·11 1()98 h ·1 b 1 J ' ~ - ...... ." . - ,ac. cen (espcra le y unc1crstaficd and therefore had had hule inlJ1act ()n t l·11·rd Pl'J]- - d 1 . .-. 1. -tJ . al cve opmcnts. ,:lllce lhc crcalJon of thc nc\v DG, the IlUlllbcr of personnel has bcen constantly lIlcreasccL la 283 onplovees in 2002 and 440 in 200 0 a 51'Z(' t]1at· I·S (' Il . '~ .. /_ . U, .-, . ~ .0111paraJe ta th8t 01 DG Tradc (4)(-) clnŢl]ovcPS) 81·1d DC' Markt (423 1· ) 1 . . . . / .~, 1.. CJnp oyees . ts ex-pendHurcs a]50 s~nv el sterp incrcasc, fronl €219.4 111illion in 2000 to €461.7 lnillion in 2006 wj th ;-, 5 . ~ j" .J 1 fI' . . ., .. ,).J._ per cent o. L 1e tota O\Vlng to bordcr controllneasures (COJ11111 iS5ion 2008./).

464 Sandra Lavenex

The rcsponsible unit in the Council Secretariat, DG H, \vas 1110fC gcnerously

staffed than the COll1mission Task Forte on JH!\ during the 19905, \vith additional

..ştaff recruited in 1998-9. The ToA furthern10re provided for the separate Schengcn

Secretariat to be integrated i11to DG H. Pern1anent rcprcsentations of th(' lllcn1ber

states in Brussels \\-'cre also drawn in~ aelding legal advisors and afflclais secondecl

frOTIl interior lninistries ta their staffs.

The ]HA Council inherited from Trevi and from the TEU's third piUar a heavily

hierarchical structure of PolicY-lnaking. It i5 one of the fev/ areas in the Council

that has four decision-n1aking Iayers. Agendas for JH-.'\ Councils are prepared by

Coreper II, \vhich meets vveekly at ambassadoriallevel. Bet\veen Corerer and the

working groups, the]HA structure has an additional intern1ediary level cOlnposed of

special coordinating cOlnmittees, vvhich bring togetherin Brussels senior officials froln

national ministries~ nonnal1y lneeting once a month. The Iov/est level is cOlnposed

_ of working groups of specialists fronl nationallninistrie~ and operational bodies (see

Figure 19.1).

The forn1er 'Coordinating Comlnittee) (the K4 Comlnittee) \vas renamed the

Artic1e 36 Comlnittec) and then the Coordinating COlnmittee for Police andJudicial

Cooperation in Crilninal Matters (CATS). At the Sall1e tiule, its 111andate \vas nar­

rowed to cover only the relnaining third~pillar issues. 1vvo ne\v comn1ittees \\Tere

created for those issues falling under the Comnlunity pillar: the Strategic Conlmittee

on Imlnigration, Frontiers and Asylum (SCIFA) and the COlnmittee an Civil La\v

Matters. Set up initially for a five-year transitiona1 period, these ne\\' comn1ittees of

senior national officials were another sign of the intergovernmentallegacy of ] HA_

cooperation) anel an anomaly under first-pillar procedures. Rather than phasing out

this additionallayer of consultatiol1) in SUlTImer 2002 a ne\v 'external borders practi­

tioners~ conln1011 unif, the 'SCIFA+', regrouped the members of the SCIFA \vith the

heads of national border control authorities.

_Although not [oreseen by the treaties, the European Councils gro\ving in1portance

has been particularly salient in ]I--IA where it has developed a leacl function through

multi-annual strategic progran1lning. The ground \vas laid \\'1th the first European

Council focused speciflcally on]HA heJ.d under the Finnish Council Presidency in

Tampere in 1999, \vhich set out far-reaching objectives and fixed deadlines for their

adoption. The 2004 European Council in The Hague follovi.'ed \vith a ne\\', an1bitious

]HA multi-annual progralnme; it is expected that the ne\\' ]HA .. 111ulti-annual pro­

grammc \\1i11 be adoprcd by thc European Couneii under the Svveuish Council Presi­

clcncy in autunl11 2009. Thesc strategic planning clocunlcnts \vere devised ta counLer

thc incrClnentalisn1 of cooperation under the Maastricht Treaty and to assure a greater

efficiency in ilnplenH~nting agreed cOlluninnents. Ho\vever, thc Henv of polieies s110\vS

that under thc current institutional procedures aneI given thc cloll1esLic sensitivity of

the fidel, a cerLain gap betV\wen anlbitions and in1pletnentaLion persists (sec bdo\v).

The n10st rcmarkable change in the fo rIn al decision-lnaking structllre bas

been the slrengthening of thc role of the European Parlialnent CEP-) vvith the

rcalization of the co-clecisioll proccdure for lnOSL aspccts of ]H/\ that fall uncler

, . ""'.. . ... ~.-.

Justice and Home Affairs 465

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466 Sandra Lavenex

thc first pillar: visas, bordcr control, irrcgular migratlon, asyluffi policy, and jucli­

ciaI coopcration in civi113\v. Until 2005, v.,rhen the transitional pcriocl of thc IoA

expircd, the EP had not been granted any powers to all1encl or block legislation

hy the Coullcl1 and lhe Council had onl1' 1.0 consult thc EP prior to adopting a

11lCaSure a requirclllent that was repcatedly violated (lavcnex 2006a), In ilS

. June 2006 Rcsolutiol1 on the AF5j, thc EP explicitly cOll1plained that il oben chel not get a11 of the preparatory dOeUTI1cnts neeessary to participate in the decision­

making process from the outset. The Council's failure to comply \vith the con­

sultation requirements had been a topie of contention during severallegislati've

proc·edures and had led the EP to file legal complaints before the EeJ, including

concerning the 2003 Family Reunification Directive and the 2005 Asylum Pro­

cedures Directive. As co-decision has not been extended to the third pillar, the EP's involvement

in matters under the third pillar has been even less satisfactory. In arder ta allo\v

it a real oppartunity ta exan1ine and, where necessary, ta 5uggest amendn1ents to

proposed measures, the EP n1ust be given al least three monlhs. Despite a n1uch

ilnproved inter-institutional dialogue, relations between the EP and the Counei}

continue to be contentious, and the EP has tried ta enhance its grip also an third­

piUar legislation. Given that third-pillar legislation of ten has elements that eould

faH under the first pillar, sueh as \vith regard to the access by laVvT-enforcement

authorities to the Visa Infonnation Systeln (VIS; see belo·v;)) lhe EP has sought ta

link its assent ta the issues under co-decision to the Councirs consideration of its

positions an the third-pillar issues negotiated under the consultation procedure,

thus de facto widening its right to co-decision to poliee and judicial cooperation in

criminalluatters. Associated quarrels have repeatedly led ro delays in the legislative

process.

The reinvention of intergovernmentalism

Faced with the increasingly assertive rale of the Ep, but also \vith the expansion of ll1ember states participating in ]HA Council meetings 'in a Iargc: \vindo\vlcss COl1-

ference hall of the CouneiI building in Brussels' acconln10dating 'same 1jO repre­

sentatives of the Presidency, the European Comlnission, the Council Secretariat and

national delegations l and speaking in twenty-three different official languages (OeI

and Rapp-Lucke 2008: 23), several 111enlber states, under Gern1an lead l have n1ade

recourse ta intergovcrnluental fonus of cooperation outside EU structures, The

Prllill Treaty m.entioned abovc is but one manifestation of thi5 trend. In lvlay 2003

the interior lninisters of the five higgest mClnber states Franee, Gern1any~ ItaIy

Spain, and the UK created the so-called GS in order la try to spred up the lnove

towards operational goa1s and to circumvent the lengthy dccision-lnaking processes

of 1.hc CouneiI of Ministers. ln 2006 PolaneI joincd the group} nlaking it the G6.

Ihe G6 Incet l\vice a yeal' al the 11linisterial 1evel and have a rotating presiclcncy

: :-, .. ~,. . -. . ,._~.. . .. ..,.-. . .... - .

. v .

,

. .

. _. . _...

Justice and Home Affairs 467

Over tilnc, 1.hc)' have devclopcd cxtensivc substructures and expert working groups

charged with 1hc ilnplelnentation of proj eCls. ]n 2(09) cighteen projects in the L-ielels

of counter-terrorisnl, organized crilne, and nligration were being conducted basecl

an t11e conclusion~ of 1hc 111inisterial n1eetings in Heiligendamnl and Stratrord-upon­

Avoll i Il 2006.

A second inte.rgovernn1en1.al forun1 in]HA is 1.he Salzburg Fonlill [ounded in 2000

on the initiative of Austria and involving Austria, the Czech Republic~ Hungar)~

Poland; Slovakia, and Slovenia. In 2006 Ron1allÎa and Bulgaria joined the group and

Croatia has been participating as an observer since 2006. Like the G6, this group

lneels t-vvice a year at ministerial level and has a rotating presidency. It has created

substructures for operational cooperation including working groups on \vitness pro­

tec[ion~ country of origin infornlation, traffic police, Schengen evaluation, exehange

of DNA data, and n1ajor events.

Both groups see their role in the elaboration and testing, in a smaller context of

like-n1inded sta les OI con tiguous neighbours, of n1easures that ean subsequently

be exponed to alI member states. \:\/hereas both face criticislU fOI CirCUlTIVent­

ing the oHicial in5titution5 of the EU and for their lael<. of transparency and

accountability, the composition of the G6 based on country size has faced par­

ticular contention. This not\vithstandin a , the 2007 Gerrnan Council Presidencv b j

expanded this ll10del of enhanced intergovernmental eooperation by ereating,

\vith the support of DG ]LS, the so-called Future Group, vvhich is charged "vith

elaborating priorities for ]HA cooperation after expiry of the Hague Programme,

i.e. frOlTI 2010 to 2014. Lilze the G6 and the 5aIzburg Forum, the Fu ture Group

gathers only the ministrie~ of the interioL and not their partners froln the justice

11linistries. In order to avoid an arbitranT selection of Inen1ber states the Group j )

i5 composed of the 'troi1(a' 1 including the outgoing and ineon1ing Presidencies

\\1ith the acting Council Presidency and the Conu11ission serving as co-chairs.

These intergovernnlental structures are renliniscent of the 'Schengen laborat~ry' that drove ]HA cooperation froul 1995 to 1999. vVith the Future Group, the

C0111mission has accepted the perpetuation of variable geollletries in ]HA, even if

lin1ited ta strategic planning, justified on the basis of efficiency.

The proliferation of semi-autonomous agencies arid bodies

Another special characteristic of Lhe governance of the JHA 1S the proliferation of

selni-autono1l10US special agencies and bodies. The multiplication of actors and

thc '\videning of thcir C0111petences over the past eight years have been impressive

and il1ustrale· lhe clynamis111 of thi5 fidd of cooperation. Yet, given that thc n1Cll1-L

bcr 51atcs havc 50 far Dot tran5ferred an)' operational powers to thesc agencies,

thei1' capabiliLies havc repeatcclly failed lo Ineet thc expectations. As it stands, thc

JJ-1A agencics and bodies are 111ainly concerned \vith infonnation cxehange and eo­

ordination bct\veen nationallavv-enforccnlenl authoritics, often supported by tlle

468 Sandra Lavenex

establishment of databases. The model of governance by this type of agency illus­

trates the choice for prolnoting European integration through the better coordina­

tion of nationalla\~l-enforcement systems rather than by replacing them with new

supranational structures.

The earliest agencies were established an the basis of first-pillar secondai-y

legislation; the European Monitoring Centre for Drugs and Drug Addiction (EM­

CDDA) set up in 1993 in Lisbon, and the European Monitoring Cen tre on Rac­

ism and Xenophobia (EUMC) established in 1997 in Vienna, which in 2007 was

replaced by the European Fundamental Rights Agency (FRA). Most subsequent

developments, however, have taken place in the framework of the third pillar.

Here the earliest agencywas UCLAF (Unite de coordination de Ia lutte al1ti-fraude) , the predecessor of OLAF, the now communitarized European Anti-Fraud Office

(see Chapter 4). The Europol Convention had been adopted in 1995, but it was

not until 1998 that it entered into force, after lengthy national ratification pro­

cedures, and Europoi became operational a year later. In 1998 the European

Judicial Network was launched, as a predecessor ta Eurojust, the 'college' of

senior magistrates, prosecutors, and judges which became operational in 2002,

to coordinate cross-horder prosecutions. The European Counci! in Tampere in

1999 proposed the creation of two new bodies: the European Police College (CEPOL), based in the UK, to develop cooperation between the national train­

ing institutes for senior police officers in the member states; and the European Police Chiefs' Task Force (PCTF) to develop personal and informallinks alnong

the heads of the various law-enforcement agencies across the EU and ta promote

information exchange. In 2009 an Asylum Support Office was created to gather

and exchange inforlnation an countries of origin and asylum proceedings in the

member states. The hope is to thereby not only assist countries in implement­

ing EU asylum directives but also ta promote the approximation of recognition practices through closer coordination.

The most dynamic agency is the Agency for the Managelnent of Operational

Cooperation at the External Borders (Frontex), which was established in War­

saw in 2005. \iVhile Frontex is primariIy for coordination and risk analysis,-

, i ts mandate was extended considerably in 2007 through the creation of Rapid

Border Intervention Teams (RABITs) as a means of providing rapid operational

assistance for a limited period ta a requesting member state facing a situation of 'urgent and exceptional pressure' at external borders. The creation of RABITs was

a reaction to the difflculties encountered in mabilizing the necessary personnel

and equiplnent froln the member states for joint operations such as the HERA

I-III operations (2006-7) to tackle irregular lnigra tion from West Africa to the

Canary Islands. Frontex's operational burden-sharing cliluension has been fur­

ther enhanced through the European PatroI Network (EPN) for Mediterranean

and Atlantic coastal waters. This organizational expansion has been backed by

a steep rise of the agency's budget from € 19 million in 2006 to €70 million in

.,.~

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Justice and Home Affairs 469

2008, thU5' indicating the enduring political salience of border management in

Europe. :This political priority which is attributed ta securing the EU's exter­

nal borders has again been stressed in the European Pact an In1ffiigration and

Asylum adopted under the French Council Presidency in October 2008, vvhich

caUs for strengthening Frontex's own operational resources. Together with the

suggestion of examining the creation of a European border-guard system, this

declaratory document hints at the possibility of developing more collective capabilities in this area.

With these new common bodies, the number of comnlon databases has also

proliferated. These cammon databases constitute the core coordination instru­

ment betvveen domestic law-enforcelnent and immigration authorities and are

meant ta boost their surveillance capacities over ll10bile undesired individuals

in the common territory. The data of EU and third-country nationals are stored

and scrutinized partly under Commission supervision (Eurodac, Customs

lnformation System) , but mostly monitored by a specialjoint supervisory author­

ity within the Council Secretariat (Europal and Eurojust databases). The most

recent development is the establishment of a Visa Information System (\lIS), a

database with personal information Cincluding biometrics) on every visa applica­

tion. Due ta unexpected technical problems and pa ar strategic planning, the idea

of a revamped SIS II has not yet materialized, and interior and justice ministers

have extended the deadline for establishing the system ta June 2009; failing that,

they will opt for a revision of the current SIS. The last step in this technological

surveillance race has been the decision, in the Pact for Asylum and hnmigration

adopted in autumn 2008, ta establish an electronic recording of entry and exit

into the EU, covering both EU and non-EU citizens~ and inspired by siInilar de­velopments in the United States.

As in most other areas of ]HA cooperation, security prerogatives in developing

the databases have been granted more attention than the concurrent civil liber­

ties or human rights aspects. Member states have taken more than three years to

agree an the Framework Decision 2008/977/jI-IA an the protection of personal

data processed in the framework of police and judicial cooperation in criminal

matters adopted on 27 November 2008. This instrulnent is widely seen as crucial

for ensuring adequate personal data protection under these information systems. . Yet, in its Decision, the Council has neither taken account of the three verv criti-

.1

cal reports issued by the EP, nor the criticism of the European Data Protection Supervisor.

The proliferation of actors indicates the strong impetus for lnore intensive co­

operation in internal security, but it also reflects the tension between, on the one

hand, the case for tighter collective policy management and legislative harmo­

nization by the EU institutions and, on the ather, the persistence of integration

by looser transgovernlnental coordination with low levels of transparency and accountability.

4'.70 Sandra Lavenex

--~-------------~------

JHA agenciesand bodies_

• European Monitonng Centre for Drugs and Drug Addiction (EMCDDA), set up in

1993 in Lisbon to provide factual information on the Europear"', drug problems, http://

www.emcdda.europa.eu.

• European Police Oftice (Europa!), set up in 1999 in The Hague to share and pool intel­

ligence ta prevent and combat serious international organized crime, http://www.

europol.europa.eu.

• European Police College (CEPOL), set up in 2000 in Bramshill UK to approximate

national police training systems, http://wwwcepol.net.

• European Police Chiefs' Task Force (PCTF), set up in 2000 ta oramote exchange, in

cooperation wrth Europal, of best practices and informai.lon on cross-border crime

and to contribute to the planning of operative actions, vl/ithout headouarters and

v'leb page.

• Eurojust, set up in 2002 in The Hague to coordinate cross-boraer prosecutians,

http://www.eurojust.europa,eu.

• Frontex, set up in 2005 in Warsaw ta coordinate operational cooperation at the exter­

nal border, http://www.frontex.europa.eu.

• European Fundamental Rights Agency (FRA), set up in 2007 in Vienna as the suc­

cessor to the European Monitoring Centre on Racisrn and Xenophobia (EUMC) to

provide the Community and its member states when impiementing CommJnity iaw

with assistance and expertise relating to fundamerita! rights, htto./lfra.europa.eu/.

....• European Asylum Support Office, proposed in 2009 to promote the approxima:ion

: of national asyl um recognition practices. .. ". -. . :

The fiow of policy

The flow of poliey has evolved in the context of the multi-annual \vork prograll1lneS

an the AFS] adopted since 1999. Actual policy developnlents have, ho\ve'ver~

reInained responsive to the changing conjuncrures of external events and

national priorities. ~1,oreover, COffilnission monitoring and evaluation reports

have repeatedly highlighted delays in and deviations frorn the realization of agreed

eOlUlni tmcnts.

The extensive use of non-bind ing texlS by the Connei!, the cxpansion of policy

objcctives, and thc lack of infringenlcnl procedures in thc third pillar 111otivatcc! the

Ccnnrnission to introduce half-yearly 'scoTeboards' reports 111onitoring progress

in inlplelTICnting the treaty aud progralnnlC provisions. The initial reports \;>,'crc

quite general and had linIe ilTlpact on the Couneil's \vork. 1v10ni toring~ ho\vever,

v/as reinvigorated 011 the basis of an extensive mandate of the European Council

in 2005 with the so-called 'Scoreboarcl Plus' for rhe inlplenlcntation of thc ll.ague

,.~.-:... .',::' .. __ '- '!r :-

, -

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Justice and Honle Affairs 471

PrograllJn1C. Thcse seconcl-gencraliol1 scorcboarels, which are published openly

on thc COTIln1isSlon's \vebsitc, eont:ain detailed infonnation on inlplenlcntation

deficits by inclj.Yidual nleIuber states, aud thus try to induce c0111pliance by 'nanl­

ing anei shaming:.

The. scoreboards regularly give a rather mixed picLure of progress in in1.plement­

ing the VvTork progran11TIes. The COlTIlnission's 2007 ilnpleluentation report con­

cluded that, ;The general overall aSSeSS111ent is rather unsatisjactory. A significant

number of actions envisaged in the Action Plan ... had to be abandoned or delayed' -(Coffilnission 2007i: 2).

. The shortcomings of implenlenting cooperation in JHA are perhaps not surpris­

ing. A constant [ea ture of ]HA cooperation is the pre-elninence of national concerns

over Cornmission initiatives and, hence, the jostling of short-term national priorities

\vith 10ng-tern1 common objectives. Generally speaking, cooperation has focused

1110St consistently an the fight against irregular nligration and cross-border crime, -

\vhile measures of operational cooperation have been easier to achieve than legisla-

tive harmonization. Insofar as harmonization measures have been adopted, they

have been limited to setting minimum standards, allow nlany exceptions, and leave

large margins of discretion to the member states.

Asyium and immigration policy

In contrast to the protracted progress of internal communitarization, particularly

since 2001,JHA has developed a dynalnic external dimension. It now has a foreign­

policy agenda of ils O"\VD. One of the most advanced areas of]HA integration i5 asy­

lurn poliey. Substantive harmonization towards a 'common European asylum system1

(CEAS) by 2010~ as provided in the Hague Programme, has, however, proved lnuch

more difficult than agreement an the alloeation of responsibility for the examination

of asylum c1aims (see Box 19.3~ Lavenex 2006a).

Agreement on \vhich forrus of ilnmigration to classify as legal has proved even

more controversial. The main achievements \vere the adoption of t'\1\'0 directives:

Couneil Directive 2003/109IEC an the status of third-country nationals who are

long-term residents in a member state of the European Union and Council Direc­

tive 2003/86IEC an the right ta falnily reunification, both adopted an 22 SepteTIlber

2003. The Councifs failure to consult the EP and the possibility that children over

the age of 12 could be excluded froIn the right to, fanlily reunification led the EP

to file el eonlplaint \vith thc EL], \vhich was however rejected (Case C-540/03 of

27.6.2006). A COI111nission proposal on the adnlission of inl111igrants for tl1c pur­

posc of \vo1'k ancl Self-elTlploYll1ent, likc the two before it, has founcllittle support in

thc Council. In October 2007 thc COJIlmission proposed the so-called 'Blne Card',

\\'hich \voulcl introduce a fast-track procedurc for thc adnlission of highly qualihed

third-countrv \vorkcrs and \vould allOVvr thenl econ01l11C lnobilitv within the EU J - /

after an initial stay of t\\'O years in thc first country of admission. The COlll111ission

justificd the proposal on the grounds of needing to offer attractive conditions in the

472 Sandra Lavenex

Common Europeanasylum system . - '

• The cornerstone of EU asylum policy is the system of exclusive rBSponsibility for.

the examination of asylum claims based an Regulation 343/2003 of 18 February

2003, establishing the criteria and mechanisms for determining the rnember state

responsible for examining an asy!um application. This instrument replaces the Dublin

Convention and its implementation is linked ta the Eurodac database,

• The mutual recognition of asylum determination outcomes im:::liied by the system of

responsibi!îty allocation necessitated minimum standards on reception conditions,

the definition of the term refugee, and asylum procedures. These 'Phase l' directives

were adopted only arter significant delays, and are riddied with delicate compro­

mises and open questions.

• A Commission Green Paper on the future Common European Asylum System

(CEAS) of 2007 (Commission 2007J) gives a critica! assessment of progress achieved

so far and identîfies the need for fuller harmonization of substenti've and procedural

asylum law in order to realize a CEAS by 2010. It also cails for a re-examination of

the cornerstone of EU asylum cooperation, the Dublin s\,stem J when it st2t8S that

this system 'may de facto result in additional burdens on Member St8tes tnat have

limîted reception and absorption capacities and that find themseives under particular

migratory pressures because of their geographicalloeation',

• The reluctance to accept supranational rules in this sensitive field of domestic poliey

has shîfted asylum cooperation ta more operational aspects, e,g. through the crea­

tion of a European Asylum Support Oftice.

o Burden-sharing remains a ehallenge, although the European Refugee =und ta sup- I

port reception, integration, and voluntary return measures in the member states has

more than tripled from €216 million (2000-4) ta just under €7CO million (2005-10),

More significant sums of money have been allocated for border controls i:'] the bor­

der fund (€ 1,820 million for the same period), as well as to Frontex activities,

• Particular attention is now pa'ld to cooperation with countiies of transit and origin of

. asylum-seekers. Mainly geared toward enhancing migration control in tnose coun­

tries, this cooperation has focused on the conclusion of readmission agreements as

·.wellas, more hesitantly, the promotion of asylum procedures and receplion capaci­

ties(Lavenex 2006b; Lavenex and Kunz 2008).

global competition for highly skil1ed workers. The proposal has) ho\vever~ raised

objections fr0111 several member states. New 111ember states, particularly the Czech

government in the 2009 Council presidency, have claimed that a schcrne favouring

third-country nationals should he introduced only after the [uU inlplcnlentation

of free-TI10Venlent Tights for their own nationals. Several other lllclnber states havc

opposed thc proposal because they \vant 1.0 prioritize their d0111CStic programnlcs

(the LJK) or they are hostile to EU cOlnpetencc over econo111ic il1ll11igratîon (A.usrria,

Gennanv. and Thc Netherlands). J '

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Justice and Home Affairs 413

In the absence of a COlnmon policy, cooperatjon regarding the integration of

third -coun trv na tiona15 1S deal t V.r1 th bv a (soft) mode of eoordination betVvTen the j J

ll1enlber states. These deliberationc; Ho,",v into an EU l-landbook on lntegration for

Policy-1\-1.akers; the second edition of Vv'hich was published in 2007 (European Com­

munities 2007). By the end of 2007 a11 11lelnber states were inregrated in the network

of '\Jational Contact Points' an integration. The 'Colnmon Basie Principles an lnte­

gration), adopted on a Dutch initiative in 2004) have remained declaratory and have

not led to any legislative action.

Froln the outset of cooperation in the nlid-1980s) the emphasis has been on the

fight against illegal immigration rather than on which legal imlnigrants to accept

(Lavenex and V/allace 2005). Most instrun1ents relate to cntry controls. A 2007

Comn1ission proposal for a directive providing for sanctions against etnployers of

illegal third-country nationals (Comlnission 2007h) has faced the opposition of sev­

eraI menlber states, because of sovereignty concerns, particularly over European

provisions for criminal sanctions in serious cases.

In the light of enduring inlll1Îgration pressure and of the internal resistance

to stronger legislative integratioTI, the emphasis of cooperation has moved out­

vvards to the attempt ta engage countries of transit and origin in the management

of migration flo\vs. Initially focused on coerclve measures and the conclusion of

readmission agreements, the failure to ensure con1pliance by third countries has led to the re-emergence of a more comprehensive vision of ext.ernal migration

cooperation and the launch of the so-called 'Global Approach~ in December 2005.

Consequently, immigration has become a main focus of the European Neighb?ur­

hood Poliey (see Chapter 17), and consultations have also intensified with Afri­

can countries. Yet~ given internal bloekages against EU conlpetence aver economic

migratioll) the EU has httle to oHer to these countries in return for their coopera­

tion in secu ring the EU)s borders. The visa facilitation agreements offered to eastern

neighbours, in exchange for their agreen1ent to readmit their own as well as foreign

nationals \\'ho stay irregularly in the EU, remain limited.

The ne\vest device in impleluenting the 'global approach: has been the conclusion of

'mobility pannerships~ in \vhich opportunities for (circular~, that is temporaIJ\ labour

migration into the EU and development cooperation are linked as well as cooperation

on readlnission and the fight against irregular migration. The first mobility partnerships

\vere conduded v.ith Cap Verde and Moldova in 2008. Negotiatiolls an such a partner­

ship \vith Senegal v/ere suspended in 2009 because Senegal was dissatisfied with the

EC~s oHer. Indeed, the existing partnerships reflect velY little innovation as they largely

sUlumarize existjng bilateral cooperation progran1111CS "With individual member states

undeI' a nev\' heading (Lavenex 2006h; L1venex and Kunz 2008).

Police and judicial cooperation in criminal matfers

The dOlninance ofnon-binding instnlnlcnts and the focus on operational cooperation l._

havc been even stronge.r in the third pillar. One of the lnain developn1ents in police

•

! i ,

.1

j I

Î j ,

l I I

47-4 Sandra Lavenex

eooperation was the decision by thc.JHA Conneil to replace the Europol Convention

with a 'thircl pillar' Decision by 2010 (Council DOCUlnent 5055/07 EUROPOL 2

of ] 9 April 2(08). This will facilitate adaptation of E uropol's lnandate by omitting

(somctilnes lengthy) ratiucation procedures by national parlialnents and turn it into

a regulaT EU agency. Apart [ro111 1.he facilitation of infonnation exchangc betwecn

nationallaw-enforcement authorities through Europal and its network of European

Liaison Officers (ELOs), as well as expertise and technical support activities ,

integration in police matters has focused on networking and the development of

C0111mOn operational practices such as through the Police Chiefs: 1as1<. Force and

the European Police College. These networks are to address the main ilnpedilnent

ta more effective cooperation betvveen national police forces~ \vhich is the need for

Inutual understanding and trust between highly diverse domestic systenls of la\v

enforcement (Occhipinti 2003). With enlargement 1 both issues the need for tn1st .

and problems associated with diversity have clearly increa5ed: pro111pting concern

about how to invigorate the operational aspects of police cooperation. In the

meantime, the Prum Treaty and the proliferation of intergovenunental consultations

confirm the continuity of concentric circles in thi5 area of cooperation.

In cOluparison, while cooperation in the judicial sphere was initially slo\ver to

develop, it has been one of the lllost dynamie aspects of JHA cooperation since the

Tampere European Council (de Kerchove aud Weyeu1bergh 2002). It has, hov.,rever,

also faced problems of a lack of trust and complex interaction. Thi5 cooperation cen­

tres on the principle of mutual recognition, which fonns thc basis of the Inain instru­

ment adopted so far in this area, the European arrest "varrant (EA\\I, see Box 19.4).

TelTorist attacks have also spurred cooperation. 1revi had its roots in fighting

terrorislll, and just ten days after the 9/11 attacks on the US in 2001, the European

Council adopted the EU Aetion Plan on Combating Terrorism. The bon1bings in

Madrid (March 2004) and London Ouly 2005) indueed l1eN initiatives, such as the

establishment of a special EU Counter- Terrorism CoordinatoL 1hi5 ne\v office has,

however, had to contend "VITith problems, siInilar to those faced by the other EU agcn­

cies. Ils first representative, Gijs de Vries, stood do\vn fro111 the post in 2007 partly

over his lack of operational powers and partly because of the overall reluctance

\vithin lllelllber states ta supply inforn1ation regarding anti-ten'or activities ar to

develop the legal instruments specified in the Aetion Plan. In 2007, Gilles de

Kerchove, a senior Council official "VIrith extensive]HA experience and international

contacts, was appointed to fiU the post.

The extern al dilnension of poliee and judicial eooperation has also expanded.

Europol, Eurojust , and rrontex havc aU concludccl coopcration agreenlc:nts \vith

a series of European and non-European countries; ancl at thc end of 2005 the

.IBA Couneil aclopted a Strategy on the externa} aspects of ]HA (Council Docu­

ment 14366/3/05 REV 3). Cooperation wi th thc US 11a5 been particularly clase

and has spurrecl rnajor controversies both between ElJ institutions and bet\veen

the EU and civil-rights activists, especial1y in thc arca of clata protection. The

2004 US-EU passenger nan1e record (PNR) agrcement: \vhich requires European

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Justice and Home Affairs 475

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European arrest warrant -

• The Ţampe~e European Counei! adopted four basic princip!es for establishing el com­

mall E'Jropean judicial space: mutual recognition of judicial decisions; approxinlation

of national substantive arid procedural laws; the creation of Eurojust; and the devel­

- opment of the exter-nal dimension of criminal law.

• The 11 September 200~i :errorist attacks in the US spurred the adoption of the Frame­

'vvork Decision on the European arrest warrant in 2002.

- • The European arrest warrant is a judicial decision issued by a member state with a

vievv tO -rhe arrest and surrender by another member state of a person being sought

for a c(,minal orosecution or a custodia! sentence, It e!iminates the use of extradition •

ano is oased an the princiDle of mutual recognition of decisions in criminal matters. •

o Ir: the absence of EU harmcnization of criminal law, the implementation of the EAW

has encountered difficulties (Lavenex 2007) .

• in surn, as in the case of migration, restrictive measures, such as the EAW, have

been easier to adopt tha:1 those harmonizing the rights of individuals, as illustrated

by the protracted process of agreeing the Framework Decision on certain procedural

-·I-ights in criminal proceedings that has been on the table since 2004 (Commission - -2004d) .

airlines flying ta the US ta provide US authorities with information an their pas­

sengers, \vas annulled by the Ee] in 2006 because the EP had not been adequately

consulted. The successor agreement, which ren1ains the same in substancc, was

adopted under treat)' provisions that do not require the EP's opinion. PNR has

raised grave concerns o.U10ng the EP, the European Data Protection Supervisor

(PeteI H,ustinx), and civil liberties groups for failing to comply with European

data protection rules.

These developments underhne the blurring of distinctions between nations of in­

ternal and external security. As with efforts ta combat imn1igration, they move]HA

cooperation closer and closer into traditional dOlnains of the CFSP (sec Chapter 18),

The agenda for reform

JH_A occupiecl a central stagc in recent European integration efforts, and the

Trcaty of Lisbon (ToL), having largely to.ken over thc far-rcaching changes pro­

posed by the Constitutional TIeaty) continucs that trend. Thc justification for the

Lisbon refornls dra\vs hcavily on public concerns about internal security and citi­

ze.ns' cxpe.ctations that the EU should do something about it (e.g. Eurobaron1eter

2008). _A second 111otivation is dissatisfaction "VIrith thc implclllcntation of agrced

cOInn1itlllents 1 in particu lelr in third-pi1lar issues.

4Jb ~a ndra Lavenex

The ToL inclucles far-reaching reform proposals that centre on thc'reun111cation'

of Jl-IA .1nto a COll1mon general legal frarnework, and, here\vith) rhe abolition

of the piUar stt:.uClure. The final cOlupromise wiU bring the AFSJ as an arca of

(shared cOlllpetence' closer to the Comn1unity methoc.1 and cxtend qualified

nlajority voting and co-decision to legal lnigration ancl Inost arcas of crin11nal

law and policing. Germany's support for this shifl coulel be won, hcnvevcr, only

by inserting an explicit clause on the right of lnenlber states to deternline the

nunlbers of economic in11nigrants. It is generally expected that cxtending (first

pillar\ decision-making rules will reduce the risks of blockages and lo\vest­

common-denominator agreements in the Council, thereby increasing the EU's

decision-making capacity and the quality of those decisions. Furthern10re, the

abolition of current res1rictions an Ee] powers should enhance compliance \vith

]HA legislation.

Apart from _co-decision \vith the Ep, democratic control \vill be enhanced by in­

creasing scrutiny by national parhaments) both as guardians of the principles of

proportionality and subsidiarity and as participants in the evaluation of the vvork

of the ]HA bodies and agencies. The possibihty for national parliaments to block

a legislative process when it is deen1ed to be in breach of the subsidiarity principle

has, however, also raised concerns about the potential obstructive use of thi5 right in

deeply pohticized issues such as migration and criminalla\v.

Most of these changes can be introduced also irrespective of the ToL through the

use of the so-called (passerelle~ of the existing Article 42 TEU, \vhich allo\vs for the

transfer of third-pillar matters ta the first piUar by a unanimous vote in the Council

of Ministers. In using thi5 possibility, however, the Council 1S free to 'determine the

relevant voting conditions', which means that this 501ution could go beyond or re­

main below the level of communitarization foreseen in the ToL,

Conclusions

Initially justified in limited terms as compensatory nleasures ta the abolition of inter­

nal border contro1s, cooperation in]HA, now metaphorically fralned as the creation

of an 'area of freedolll, security, and justice~, has been elevated to a central o bj ective

of the EU. The Treaty of Lisbon lists it second after the overall comlnitment to peace

promotion, and before the internal market, environn1entaL 01' social policies,

Beyond these symbolic steps, integration in these sensitive fields of state sover­

eignty renlains cOllstrained by n1ultiple tensions and difficult comproDlises. Anl0ng

these tensions the relationship betvveen integration through increased harnl0niza­

. tiOll and centralized ElI structures on the one hand and through enhaneed coordina­

tion of national structures on the other renlains unsettled,

There are linlitations an what can be achievcd through dependence an

transgovernmenta] networks, Inutua1 recognition, and initiatives by menlber

, ·

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governrnents. In a fidel \vherc conccrns abolIt civil liberties are povverful) these

lnethods have regulaTIy favourccl 'security' aver 'freedoll1' and 'justicc'., and they

posc major problems for scrutin)' and transparency. Cooperation among twentv-- .1

seven 111cnlbcr govcrnnlents 111ay increase pressures for comnlon rules and effective

n1onitorÎng of their implementation, and play in [avour of the cxploitation of the

ToL OI' the use of the 'passerel!e' for nl0ving towards thc COlnmunity 11lethocl of

decision-n1aking. In the absence of political \viU, however, the opposit.e could

equally \ve11 oeeur. Thc re-elnergence of intergovernnlcntal cooperation outside the

EU and the preference of operational coordinatian over legislative harmonization

both point in this direction.

FURTHER READING

For a fairly com.orehensive overview ofthe JHA acquis see Peers (2007} and Mitsilegas ...

ei: aÎ.(2003). On the development of immigration policy, see Geddes (2008), and onthe

effects of EU policies on themember states see Ette and Faist(2007).Mitsilegas (2009)'·

gives an excellent introduct'lon Înto EU criminallaw'cooperation,and Occhipintî(2003) an .. .. . .

poiice cooperation,

Etts, A., and Falst, T. (2007) (eds,), The Europeaniza tionof National Policies andPoJÎtics of> . o • • • •• ••• • •••• •

ImrnigratÎon (Basingstoke: PaJgrave Macmillan), ... .... ... .. ..... ... .. .. .

Geddes, A, (2008), /mmigration and European In tegra tion: TowardsFortressEurope?, 2nd ... . edn, (fv1 a nchester: fViB nchesterUn iversity Press). •. .. ..' .. . .

. . . .. .

Mitsiiegas,V(2009), EU Criminal Lav./ (London:Hart).·

. rvlitsilegas, V, Monar) J.,and Rees J 'J\I(2003),The EuropeanUnionand InternalSecurity:· Guardian of the People? (Basingstoke: PalgraveMacmillan), .

OcchipintÎ, J D. (2003), The Politics of EU PoliceCooperation: Towards a European FBI?

( Bou J d e r, C O : LV n neR i e n ner) .

Peers, S.(2007), EU Justice and Home Affairs Law (Oxford:. Oxford University Press).

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