With and without supranationalisation: the post-Lisbon roles of the European Council and the Council in justice and home affairs governance

Abstract

‘Integration without supranationalisation’ is a recent phenomenon in European Union (EU) politics characterising new areas of policy activity which emerged on the EU agenda at Maastricht or beyond. Among fields like economic governance, foreign and security policy or social and employment coordination, the domain of justice and home affairs (JHA) appears to deviate from the pattern. While being a new area of EU activity which originally evolved on the basis of policy coordination arrangements, JHA has been gradually supranationalised in respect to decision-making procedures. However, given the political sensitivity of the issues it covers, JHA is far from functioning as a standard field of EU legislative decision-making, even after the Lisbon Treaty. By examining the active role of the European Council in setting the JHA agenda and the continuous centrality of the JHA Council in decision-making, this article demonstrates an important blend of supranationalisation and intergovernmentalisation in post-Lisbon JHA governance.

Keywords:

• Intergovernmentalism
• European Council
• Council
• justice and home affairs
• supranationalisation
• Lisbon Treaty

Acknowledgements

I am grateful to my interviewees, without whom this research would not have been possible. I would also like to thank the editors and the contributors to this special issue, as well as two anonymous reviewers for the constructive feedback provided on earlier versions of this article.

Notes

1. According to the Lisbon Treaty, JHA includes the following policy subfields: visa, asylum, migration (legal and illegal), judicial cooperation in criminal (including counter-terrorism) and civil matters, police cooperation, civil protection, passports and identity cards (TFEU, Art. 77–89).

2. Apparently, even the threat of bringing an issue before the European Council is enough to solve legislative deadlock in the Council (Van Kemseke 2014).

3. The Data Retention Directive required communication service providers in member states to store all the telecommunication data of their customers for a period of minimum 6 and up to 24 months and make it readily accessible to law enforcement authorities in pursuit of suspected criminals connected to terrorism (Directive 2006/24/EC). The Directive was invalidated by the Court of Justice in 2014 as violating both the right to privacy and the protection of personal data (BBC News 2014).