Security Versus Freedom?

A Challenge for Europe's Future

Thierry Balzacq, Sergio Carrera

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317057963
• Topic: Politics & International Relations
• Subtopic: National Security
• Index: Politics & International Relations

From the viewpoint of migration and asylum policy and the fight against terrorism, justice and home affairs is a key policy area. It is also an area that raises important challenges and questions with regard to the preservation of fundamental freedoms. This engaging volume examines the emerging European Union area of freedom, security and justice at a time when key policy priorities are taking shape within the EU. Bringing together contributors from different backgrounds, the volume is ideal for students and scholars of European studies, law, political science, political theory and sociology.

Chapter 1
The Hague Programme: The Long Road to Freedom, Security and Justice

Thierry Balzacq and Sergio Carrera

1. Introduction

In Justice and Home Affairs, the second multi-annual programme on Freedom, Security and Justice, the so-called ‘the Hague Programme’ has become a milestone.¹ Yet, the issues included under the heading ‘Freedom, Security and Justice’ are not comparable to any other EU policies. Instead they are probably the most dynamic, sensitive and hotly contested. Indeed, forming an essential part of the traditional concept of national sovereignty, these areas are fraught with national fears, rival ideologies and competing political sensitivities. These problems partly explain why common and effective policy responses are hard to achieve and maintain. Moreover, this difficulty is exacerbated by the fact that decisions in these fields have mainly developed through an intergovernmental method of co-operation and have been subject to a strict unanimity voting rule at the Council of Ministers. Finally, a political struggle between national sovereignty and EU competence is still simmering away as the EU develops a common Area of Freedom, Security and Justice (AFSJ) in an enlarged Union.

The aim of this chapter is to put developments in the AFSJ in context. We do this in two ways. First, we examine the main achievements in Freedom, Security and Justice. Second, we discuss the level of policy convergence reached in these three dimensions as well as some of the most relevant policies being proposed or expected to come on the agenda during the Hague Mandate. By policy convergence we mean not only the degree of harmonisation or level of ‘Europeanisation’ based on the number of legal instruments that have been adopted at the EU level, but also to the discretion left to member states in the application of a wide range of provisions incorporated in the EU laws examined. In other words, convergence is achieved when member states agree to abide by the rules they have enacted. By contrast, there is a lack of convergence when a set of provisions contained in the rules agreed grant wide powers to the member states. In this context, taking the Hague Programme as a landmark, our analysis does not attempt to present an exhaustive list of all the measures that have been adopted, but instead offers an overview of the main and most recent legal steps and initiatives towards a common EU policy. This chapter is divided up into five sections. The first introduces the reader to the defining problem of the AFSJ, i.e. the division of competence between the EC first and the EU third pillars. Section two presents the main provisions of the Hague Programme under ‘Strengthening Freedom’. Section three examines ‘Strengthening Security’, whereas section four analysis ‘Strengthening Justice’. Finally, section five gives the plan of the volume.

2. Formulating a Common Strategy for Freedom, Security and Justice

The journey started with the entry into force of the Treaty of Amsterdam. In May 1999, policies on immigration, asylum and free movement of persons were moved to the realm of Community competence under the EC first pillar, i.e. Title IV of the EC Treaty, ‘Visas, asylum, immigration and other policies related to free movement of persons’.² In addition to the commitment to abandon the unanimity voting rule within a period of five years after the entry into force of the Treaty of Amsterdam,³ the Council was required to adopt, inter alia, measures on asylum (Art. 63.1 EC Treaty), refugees and displaced persons (Art. 63.3 EC Treaty), immigration policy (Art. 63.2 EC Treaty), and instruments defining the rights as well as conditions under which non EU-nationals residing legally inside the Union might move in another member state (Art. 63.3 EC Treaty).

While all the other policies that are part of Title IV of the EC Treaty already benefit from the use of qualified majority voting (QMV), the field of legal immigration as included in Art. 63.3.a EC Treaty continues to be subject to the unanimity rule and falls outside the co-decision procedure as provided by Art. 251 EC Treaty.⁴ In addition to the evident lack of efficiency,⁵ the unanimity rule is the direct expression of questionable maintenance of individual sovereignty powers within the Council of Ministers. To make the best of the situation, the Council agreed on 22 December 2004 to act by QMV for measures under Arts. 62.1.2.a and 3 EC Treaty, which include abolishing internal border controls on persons, establishing standards for checks on persons at internal borders and freedom to travel within the EU for three months for third-country nationals.⁶ In addition, it applies QMV to Arts. 63.2.b. and 3.b EC Treaty, concerning burden-sharing among member states with regard to asylum-seekers and illegal immigration, and the repatriation of illegal residents.⁷ However, none of the other fields of immigration, such as legal migration-related issues, are included.

By the same token, the areas enshrined in member states justice and security policies were not transferred to the ‘Community Method’ and remained within the scope of the EU third pillar or Title VI of the Treaty on European Union (TEU), ‘Provisions on Police and Judicial Cooperation in Criminal Matters’.⁸ The EU third pillar has different goals as well as institutional and decision making mechanisms to those in the EC first pillar.⁹ The goals of the EU third pillar are stipulated in Art. 29 TEU, which provides that ‘The Union’s objective shall be to provide citizens with a high level of safety within an area of freedom, security and justice by developing common action [for]…closer cooperation between police forces, customs authorities and other competent authorities in the member states’. The article goes on to highlight that this objective shall be achieved through enhanced co-operation between national security agencies (such as police) and judicial authorities ‘by preventing and combating crime, organised or otherwise, in particular terrorism, trafficking in persons and offences against children, illicit drug trafficking and illicit arms trafficking, corruption and fraud’. Nonetheless, all cooperation in this vast sphere continues to be based on ‘intergovernmentalism’, or, in Peers’s words, ‘black-market integration’.¹⁰ Competence for these policies remains largely in the hands of the ministers of justice and interior of the EU member states.

The existing tools under the EC first pillar are the usual regulations, directives, recommendations, decisions and opinions. Under the umbrella of the EU third pillar, instead we find conventions, common positions and framework decisions. The latter, which are binding on member states in their entirety and do not require national ratification, do not have direct effect.¹¹ The negative effects that the division between the two pillars creates have often been pointed out.¹² To start with, the EU third pillar remains far from being the best democratic practice for the EU. For example, the European Court of Justice (ECJ) does not have full competence to review and interpret legal instruments dealing with judicial co-operation in criminal matters and police cooperation. At present, following Art. 35 TEU, member states can make a declaration recognising the jurisdiction of the Court in Luxembourg in these policies.¹³ As Chapter 8 of this volume argues, it is striking to see that only two of the ten new Member States have recognised the competence of the ECJ over third pillar-related issues. On the other hand, the European Parliament is not sufficiently included in the decision-making process due to the non-applicability of Art. 251 EC Treaty. The lack of democratic checks and judicial accountability under the EU third pillar has been commonly referred to by the literature as a ‘democratic and judicial deficit’.¹⁴ Finally, there is a lack of transparency, efficacy and a high degree of inefficiency owing to the existence of the two pillars. As regards transparency, the EU third pillar places contested political issues among the Member States into a highly technical, obscure and ambiguous legal matrix. This makes the role of the ECJ even more relevant as regards the final judicial interpretation of the legal complexities thereby adopted. The duality of pillars equally creates uncertainty as to the precise legal effects of each of the juridical acts being used under each pillar as well as in terms of their material scope.¹⁵ This also presents dangers for individual citizens.

Based on the foundations provided by the Amsterdam Treaty, the Tampere European Council of 15 and 16 October 1999 provided the political impetus for the gradual development of an AFSJ.¹⁶ The Council conclusions of the Finnish Presidency sought to set out a roadmap leading to the establishment of a ‘Union of Freedom, Security and Justice’.¹⁷ This was set in the framework of a five-year programme (1999-2004) that aimed at setting in stones a proper balance between freedom, security and justice. It also presented a timetable, the so-called Tampere Scoreboard, which specified deadlines and structured the political agenda. Point 1 of The Tampere Programme provided that the AFSJ should be ‘firmly rooted in a shared commitment to freedom based on human rights, democratic institutions and the rule of law’. Tampere conclusions were often subject to various criticisms regarding the unsatisfactory implementation process and for failing to meet the deadlines originally agreed.¹⁸ But before the lessons of the Tampere conclusions were set out, a second multi-annual programme, ‘the Hague Programme’, was set in motion.

The Hague Programme was agreed by the European Council on 4-5 November 2004. It sets a new policy agenda for the next five years (2004-2009).¹⁹ By and large, the Hague Programme addresses pretty well the same topics. However, if we compare the guiding common values of the Tampere and Hague Programmes, the latter seems to shift the balance between ‘freedom’ and ‘security’ in a very critical way. There has been a significant change in the values on which the EU’s AFSJ is being built. In fact, the ‘shared commitment to freedom based on human rights, democratic institutions and the rule of law’, as set out at Tampere, is not a cornestone of its successor. The Council now gives a high priority to security, meaning: ‘the development of an area of freedom, security and justice, responding to a central concern of the peoples of the States brought together in the Union’. ‘The central concern of the peoples of the States’ is thus translated into a security-led approach which dominates the Programme. In other words, it is as if ‘the security of the State’ predates the liberty of the individual. Substantial sections of the programme emphasise provisions relating to ‘strengthening security’ (such as the improvement of exchange of information to counter terrorism). It is also surprising that many security-related measures are found in the sections of ‘strengthening freedom’ (for instance border checks, the fight against illegal immigration, biometrics and information systems). By contrast, protection of fundamental rights, fair treatment of third country nationals, the role and powers of the newly proposed Fundamental Rights Agency and the role of the European Court of Justice are dealt with very briefly.²⁰

To take the Hague Programme forward, the European Commission agreed on an Action Plan implementing the Hague Programme 2005/184 on 10 May 2005 (hereafter referred to as the Action Plan).²¹ The Action Plan identifies ten strategic objectives or priority areas. The actual translation of the Hague Programme’s milestones into concrete legal instruments is located in the annex of the Action Plan, which specifically lists the key actions and measures to be taken over the next five years as well as the deadlines for them to be adopted. The ten policy priorities that will prevail in the AFSJ for the next five years are presented thus:

1. Fundamental rights and citizenship – creating fully-fledged policies.

2. The fight against terrorism – working towards a global response.

3. A common asylum area – establishing an effective harmonised procedure in accordance with the Union’s values and humanitarian tradition.

4. Migration management – defining a balanced approach.

5. Integration – maximising the positive impact of migration on our society and economy.

6. Internal borders, external borders and visas – developing an integrated management of external borders for a safer Union.

7. Privacy and security in sharing information – striking the right balance.

8. Organised crime – developing a strategic concept.

9. Civil and criminal justice – guaranteeing an effective European area of justice for all.

10. Freedom, security and justice – sharing responsibility and solidarity.

3. Strengthening Freedom

3.1. European citizenship and the freedom of movement

Respect for the fundamental rights of the individual and the rule of law should be the core pillars and general philosophy of the Union’s AFSJ. Under the heading ‘Strengthening Freedom’, the Hague Programme brings together a wide number of policies ranging from citizenship of the Union to asylum, migration and borders.

The goal of progressively e...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Notes on Contributors
• Acknowledgements
• 1. The Hague Programme: The Long Road to Freedom, Security and Justice
• Freedom
• Security
• Justice
• References
• Name Index
• Subject Index