EU police and judicial cooperation before the Treaty of Lisbon: strengthening of the weakest link?

Abstract

Three key questions arise from the encroachment of the European Union (EU) on national prerogatives in the administration of justice: What factors contribute to the weakest link collective action problem attending police and judicial cooperation within the EU? What were the substantive and institutional goals of the EU in this policy domain? What accounts for the rising level of police and judicial cooperation despite the persistence of barriers to cooperation and incentives to defect? This article first establishes the fundamental incentives and obstacles to cooperation in matters of transnational security threats in post-Westphalian Europe. It then proceeds to explore the evolution of police and judicial cooperation in Justice and Home Affairs between 1999 and 2009, to assess national contributions to police and judicial cooperation, and to consider the potential impact that the changes introduced by the Lisbon Treaty, Stockholm Programme and European Investigation Order. A final question is considered in the conclusion: Did the level and extent of police and judicial cooperation that emerged between 1999 and 2009 give rise to a community of practice that in turn fostered a nascent community of identity resilient enough to mitigate the weakest link technology of public goods production endemic to this policy domain?

Keywords:

• Justice and Home Affairs
• police and judicial cooperation
• public goods

Acknowledgements

Thanks are due to Mark Rhinard, Raphael Bossong, and two anonymous reviewers for their careful and constructive readings of different drafts of this manuscript.

Notes

1. On the origins and evolution of the EU as an actor in this policy domain, see Anderson (2002), Mitsilegas et al. (2003), Kirchner and Sperling (2007), Mitsilegas (2009), Rees (2011), Kaunert (2011), and Eckes and Konstadinides (2011).

2. The analysis is restricted to the period 1999–2009. The Tampere Milestones and Hague Programme are the two comprehensive multiyear programmes seeking to effect the goals of the Amsterdam Treaty in JHA and for which a comparable set of data is available on member-state compliance. The Commission has not yet produced an interim report on member-state compliance with the current Stockholm Programme (2010–14), which necessarily excludes it from consideration.

3. On the role of weakest link technologies in this particular policy domain, see Kirchner and Sperling (2007, chapter 6), Dorussen et al. (2009, pp. 794–795, 2010, pp. 295–301).

4. For a discussion of the differences between these three alternative technologies of public goods production, see Sandler (1977) and Bossong and Rhinard (2013).

5. From a public good perspective, this serial non-compliance can be ascribed to the EU's inability (or unwillingness) to expel or sanction a chronic free-rider.

6. On the potential barrier to deeper European cooperation posed by the German constitution, see Harnisch (2006).

7. A full assessment of progress towards mutual recognition of legal decisions can be found in Vernimmen-Van Tiggelen and Surano (2008).

8. The as-yet-unrealised goal of standardising penal codes would serve the larger objectives of ensuring that criminal conduct in the EU would be treated similarly regardless of where the offence took place, preventing criminal organisations from forum shopping when committing crimes or devising strategies to escape prosecution, and symbolically transforming the EU into a single legal area (European Commission 2004a, pp. 9–10; Council of the European Union 2008a).

9. Eurojust is a college populated by prosecutors, judges or police officials from each member state. See Jimeno-Bulnes (2003, pp. 620–621) and European Commission (2004b, p. 12).

10. This list of obstacles shrunk to eight general categories in the 2002 report, but the new list underscored the divergence in judicial and prosecutorial cultures within the EU (Eurojust 2003, p. 16). A singular non-quantifiable Eurojust contribution to judicial cooperation within the Union was the creation of guidelines to settle where a suspect should be tried if two national legal systems have a legitimate jurisdictional claim. The guidelines reflect practical considerations to expedite trials and maximise the likelihood that the prosecution will be successful; they also prescribed that a legal proceeding could not be held in one jurisdiction rather than another owing to less restrictive rules of evidence or harsher criminal penalties. See Eurojust (2004): Annex.

11. Europol's mandate was progressively extended to include most categories of serious crime beginning in June 2001 and then terrorist offenses after 11 September 2001. Although counter-terrorism was designated as a special area of Europol responsibility in May 1998, the 11 September 2001 terrorist attacks in the US led to the reactivation of the Europol counter-terrorism task force. The task force was charged with the objectives of collecting information and intelligence, analysis of that intelligence and the production of a threat assessment document for distribution to national law enforcement authorities. For the most recent iteration of the ‘forms of serious crime which Europol is competent’, see Council of the European Union (2009c): Annex.

12. For assessments of national compliance with the JIT framework decision, see European Commission (2005c, 2009a).

13. The Council defined the long-term goal of CEPOL as the creation of ‘a European approach to the main problems … in the fight against crime, crime prevention and the maintenance of law and order and public security’ (Council of the European Union 2004, p. 5 and 2005d, article 1).

14. Aside from seminars on topics ranging from terrorism to criminal intelligence and risk assessment to high-tech and internet crime, CEPOL also manages the European Police Learning Net (EPLN). The EPLN provides additional training opportunities, including the development of e-learning modules, a common information base on police practices and a secure method of communication. See European Commission (2006b, p. 84).

15. ECRIS provides for an encrypted common communication infrastructure and a comprehensive list of national offense according to a common rubric (Annex A), and identifies the range of penalties attending each category of crime (Council of the European Union 2009a). The Prüm Decision replaced the 2005 Prüm Convention (Council of the European Union 2005c) with binding legislation that assures the automatic exchange of DNA, fingerprints and vehicle registration data.

16. A full catalogue of EU legislation in this policy domain can be found in Jörg Monar's contributions to the Journal of Common Market Studies Annual Review of the European Union between 2005 and 2011. The most recent installment covers current efforts to implement the provisions of the Stockholm Programme (Monar 2011).

17. The US Federal Bureau of Investigation has recently acknowledged the difficulty in attributing the declining US crime rate to more effective policing, greater inter-agency cooperation or demographic change. See Barrett (2011).

18. This classification was employed to explain the asymmetrical participation of the new and established EU member states in the two categories of participation. See European Police College (2011, p. 41).

19. The index of effort is derived by determining the national share of aggregate participation in each category of participation divided by the national share of total EU police forces. When the ratio falls below unity, it indicates free-riding; where it is greater than unity it indicates an over-contribution.

20. This distribution has not abated over time: in 2002, bilateral and multilateral cases accounted for 71 and 21 per cent of the total number of cases referred; in 2010 the shares were 83 and 21 per cent, respectively.

21. The remaining priority offenses referred to Eurojust included trafficking in humans (12 per cent), terrorism (5 per cent) and cyber crime (4 per cent).

22. One assessment of the AGIS programme concluded that it largely met the external challenges facing the EU (particularly cross-border cooperation against terrorism, organised crime and economic crime) and supported the development of a single European law enforcement area. See European Commission, DG Justice, Freedom and Security (2005).

23. This funding mechanism was complemented by a second entitled ‘Prevention, Preparedness and Consequence Management of Terrorism and other Security Related Risks (CIPS)’. For a full accounting of both mechanisms, see European Commission (2011b).

24. Data were drawn from European Commission (2005a, 2006e, 2011a, p. 4).

25. For detailed analyses of the Lisbon Treaty's impact on JHA cooperation, see also Wolff et al. (2011).

26. The Stockholm Programme (2009–13) is the first post-Lisbon legislative agenda on police and judicial cooperation. There is a high degree of continuity with the Tampere Milestones and Hague Programme (Kostakopoulou 2010, pp. 159–164), but it also emphasised the need for what could be called a ‘community of trust’. The Programme made two notable assertions in this regard. First, the principle of mutual recognition depended upon deepening mutual trust between police and judicial authorities, which in turn would contribute to the development of a common European judicial culture (Council of the European Union 2010b, para 3) and overcome the obstacles posed by divergent national approaches to judicial process and penal law (European Commission 2010, p. 4). Second, the Programme acknowledged the fragmentation of the existing regime of framework decisions supporting judicial and police cooperation (for a critical review, see Brown 2011), and underscored the need for an integrated and expanded set of rules and procedures governing the collection and dissemination of evidence to complement the EAW (Council of the European Union 2010b, para 1.1). The integration of EU legislation on these matters has taken the form of a draft directive, the EIO (Council of the European Union 2010a). A number of the provisions in the draft directive redress operational deficiencies in the patch-work of preexisting framework decisions. First, it unifies the currently independent orders for freezing property and evidence with orders to transfer it to the requesting state; second, it expands the scope of the EEW beyond access to existing evidence to obtaining it through joint investigations and third, the grounds for non-recognition of an EIO are relatively limited, particularly if compared to the EAW (Council of the European Union 2010a, Article 10; see also Sayers 2011, p. 10).