An open and secure Europe? Fixity and fissures in the area of freedom, security and justice after Lisbon and Stockholm

Abstract

The Lisbon Treaty's depillarisation of justice and home affairs (JHA) cooperation represents a major break from the past. It opens the way for the full involvement of the Commission, the European Parliament and the European Court of Justice, an involvement that is bound to influence the substantive scope, and perhaps liberalise, legal and policy output in the years ahead. A different form of cooperation in area of freedom, security and justice institutionally and substantively is digging out its space within the present, security-oriented and traditionally executive-driven architecture. The Stockholm Programme and the proposed Action Plan are a reflection of this. Present in them are aspects of the Hague Programme and the logic of control and surveillance. But there also exist vessels of less ideology-driven policies, pragmatic responses to JHA challenges and respect for citizens' rights, human rights and the rule of law. Whether the latter paradigm, which is wrapped up within the logic of security, remains confined and crammed in the next five years or will be given room to grow remains to be seen.

Keywords:

• security
• Lisbon treaty
• Stockholm

Notes

1. For a discussion on the origins of justice and home affairs cooperation (1985) and the advanced intergovernmental cooperation (1985–92), see Kostakopoulou (2007, pp. 156–158).

2. For the role of other conjectural factors in this process, see Donnelly (2008).

3. The principle of mutual recognition was first included in the Presidency Conclusions of the Cardiff European Council in June 1998, was explicitly endorsed by the Tampere European Council (1999) Compare Joint Cases C-187/01 and C-385/01 Gozutok and Brugge (2003) ECR I-1345 at para 33.

4. The first initiative was the proposal for a Directive on Family Reunification; COM (1999) 638 final, amended by COM(00) 624 final.

5. Provisions III-257–277 became Articles 67–89 TFEU in the Lisbon Treaty. For a discussion on the Constitutional Treaty's provisions, see Kostakopoulou (2007).

6. Interestingly, measures concerning border checks, a common European asylum system, and a common immigration policy have been removed from the domain of unanimity. The areas that still require unanimity are EU measures concerning passports, identity cards, residence permits and other documents necessary for the free movement of persons (Article 77(3) TFEU); family law (Article 81(3) TFEU); the establishment of a European public prosecutor and the future extension of its powers (Article 86 TFEU); measures concerning operational police cooperation (Article 87(3) TFEU); decision on the conditions and limitations under which law enforcement and judicial authorities may operate in the territory of another MS (Article 89 TFEU). Qualified Majority Voting (QMV) now requires the support of 55% of the MS representing at least 65% of the population of the Union.

7. The traditional consultation and consent procedures are now ‘special legislative procedures’. In the AFSJ consultation still applies to measures concerning passports and other documents (Article 77(3) TFEU), the adoption of temporary measures in case of an emergency situation caused by a sudden influx of third country nationals (Article 78(3) TFEU), measures on family law (Article 81(3) TFEU), operational police cooperation and rules on the conditions and limits of the operation of law enforcement and judicial authorities in other MS. The European Parliament's consent is required for the identification of new areas of Euro-crime (Article 83(1) TFEU), the establishment of a European Public Prosecutor's Office and the extension of its powers (Article 86 TFEU), measures concerning operational police cooperation (Article 87(3) TFEU); decisions on the conditions and limitations under which law enforcement and judicial authorities may operate in the territory of another MS (Article 89 TFEU).

8. The Commission already had an exclusive right of initiative in judicial cooperation in civil matters under the Treaty of Nice.

9. In these areas, a quarter of the MS can initiate a legislative proposal (Article 76 TFEU). The Convention's Working Group X had suggested the introduction of a threshold of either 1/3 or 1/4 or even 1/5 of the MS for a MS initiative to be admissible. Following this suggestion, the Constitutional Treaty (Article III-264) stated that a quarter of MS can bring forward legislative initiatives in criminal matters including the operational cooperation between administrative and police bodies of the MS. The imposition of this threshold is designed to prevent governments from taking politically expedient decisions which do not reflect a wider European interest.

10. A transitional phase of five years is envisaged by Protocol 36 annexed to the Lisbon Treaty: polices and judicial cooperation measures already in place before the Treaty entered into force will be reviewed by the ECJ under the pre-Lisbon regime during the next five years.

11. Protocol (No. 7) on the Application of the Charter of Fundamental Rights to Poland and to the UK. The Protocol will be amended to include the Czech Republic in the next treaty of accession. On the Protocol and its implication for the UK, see House of Lords, Constitution Committee's 6th Report of Session 2007–08, EU Amendment Bill and the Lisbon Treaty: Implications for the UK Constitution, 28 March 2008, HL Paper 84.

12. According to Article 4(2) TEU national security remains the sole responsibility of the MS.

13. Internal security is not confined to police matters; it includes operational cooperation in the event of a major catastrophe, natural and man-made disasters as well as terrorist attacks.

14. The Council approved an ‘Internal Security Strategy for the EU’ on 25 February 2010; 6870/10 (Presse 44), Brussels, 25 February 2010.

15. The Amsterdam Treaty required the Council, when acting a legislator, to publish the results of its votes, but not its deliberations (Article 207(3) EC). The Seville European Council (June 2002) obliged the Council to open its legislative meetings to the public. Implementing the conclusions of the Seville European Council, the new rules of procedure for the Council state deliberations on acts to be adopted in accordance with the co-decision procedure shall be open to the public.

16. National parliaments have witnessed an incremental increase in their involvement in EU affairs initially by Declaration 13 appended to the TEU and later on by the Amsterdam provisions concerning the prompt forwarding of consultation papers and legislative proposals or a proposal for a measure to be adopted under Title VI TEU to national parliaments within six weeks before the item is placed on the Council's agenda for decision (subject to exceptions on the ground of urgency).

17. The Hague Programme envisaged the appointment of a Special Representative for a common readmission policy.

18. Notably, crime prevention was mentioned in Article 29 EU, but it was not included in the specific legal bases of Articles 30 and 31 EU.

19. COM(2001) 715 final.

20. for a reflection, see Guild and Carrera (2009).

21. Guild and Carrera also suggest the replacement of the term citizen with that of individual; p. 10.

22. This is due to the four Directives on TCNs: Directive 2003/109/EC of 25 November 2003 concerning the status of third country nationals who are long-term residents, OJ L 16/44, 23.1.2004; Directive 2004/114/EC of 13 December 2004 on the conditions of admission of third country nationals for the purposes of studies, pupil exchange, unremunerated training or voluntary service, OJ L 375/12, 23.12.2004; Directive 2005/71/EC of 12 October 2005 on a specific procedure for admitting third country nationals for the purposes of scientific research, OJ L 289/15, 3.11.2005; Directive 2009/50/EC of 25 May 2009 on the conditions of entry and residence of third country nationals for the purposes of highly qualified employment, OJ L 155/17, 18.6.2009.

23. ‘In order to maintain credible and sustainable immigration and asylum systems in the EU, it is necessary to prevent, control and combat illegal migration’; European Council (2009, p. 11).

24. Compare the Common Basic Principles on Integration adopted by the JHA Council of 19 November 2004; Justice and Home Affairs Council Meeting 2618, 14615/04 of 19 November 2004.

25. Compare The Hague Programme: Strengthening Freedom, Security and Justice in the EU, Council of the EU, Brussels, 22 October 2004, 13302/2/04 REV2, p. 37.