The European Union as an Area of Freedom, Security and Justice

Maria Fletcher, Ester Herlin-Karnell, Claudio Matera, Maria Fletcher, Ester Herlin-Karnell, Claudio Matera

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317573227
• Edition: 1
• Topic: Jura
• Subtopic: Öffentliches Recht

This book presents a collection of essays on key topics and new perspectives on the EU's Area of Freedom, Security and Justice (AFSJ) and has a Foreword by the President of the Court of Justice of the European Union, Prof. Dr. Koen Lenaerts.

Europe's area of freedom, security and justice is of increasing importance in contemporary EU law and legislation. It is worthy of special research attention because of its high-stakes content (particularly from an individual and a state perspective) and because its development to date has tangentially thrown up some of the most important and contentious constitutional questions in EU law.

As the AFSJ becomes more and more intertwined with 'mainstream' EU law, this edited collection provides a timely analysis of the merger between the two. Showcasing a selection of work from key thinkers in this field, the book is organised around the major AFSJ themes of crime, security, border control, civil law cooperation and important 'meta' issues of governance and constitutional law. It also analyses the major constitutional and governance challenges such as variable geometry, institutional dynamics, and interface with rights around data protection/secrecy/spying. In the concluding section of the book the editors consider the extent to which the different facets of the AFSJ can be construed in a coherent and systematic manner within the EU legal system, as well as identifying potential future research agendas.

The European Union as an Area of Freedom, Security and Justice will be of great interest to students and scholars of European law and politics.

1Introduction

Maria Fletcher, Ester Herlin-Karnell and Claudio Matera

This edited collection explores Europe’s Area of Freedom, Security and Justice (AFSJ) from a largely legal perspective. It attempts to do so holistically; in the sense that it offers both reflections on the range of policy fields that fall under the AFSJ umbrella and also analyses of the AFSJ as a phenomenon, from a variety of perspectives – including theoretical, institutional and constitutional. The AFSJ is worthy of special research attention because of its high-stakes content (particularly from an individual and a Member State perspective) and because its development to date has tangentially thrown up some of the most important and contentious constitutional questions in EU law – making it a focal point not only for AFSJ law academics and practitioners but also those with an interest in EU governance, human rights, EU citizenship and constitutionalism more generally. As the AFSJ becomes more and more intertwined with ‘mainstream’ EU law and given the various ‘crises’ currently facing the EU – from the migration crisis to the euro crisis to the increased terror threat – a critical assessment of responses and developments from the AFSJ perspective seems timely. Our aim for this edited collection is to offer a comprehensive look at AFSJ from this important vantage point and in so doing reflect on the past and future challenges of AFSJ law. In the following we set out to summarise the different parts of the book and explain how they are interlinked. The book consists of six parts all charting contemporary challenges in AFSJ law.

Part I introduces key concepts in the EU as an Area of Freedom, Security and Justice. This section sets the stage and identifies key issues in AFSJ law. In the first chapter, Steve Peers provides a helpful legal overview of the AFSJ domain. He traces institutional and policy evolution in key areas of justice and home affairs (JHA) law from prior to the Maastricht Treaty up to the present day. He suggests that today, particularly in light of recent terror attacks on EU territory and the recently escalated and ongoing EU ‘migrant crisis’, JHA law, and thus the AFSJ project, stands at a precipice in both institutional and substantive terms. While there is evidence that institutional changes heralded in by successive Treaty reforms have been accompanied by the development of a somewhat more liberal policy in some policy domains, EU responses in other areas of JHA law – particularly those developed more recently in response to the migration crisis – are rather less liberal. As for the future, he suggests, somewhat ominously, that the current crises create inherent tensions that will shape the EU’s policy responses for years to come.

The next chapter, by Massimo Fichera, sketches out a theory for the Area of Freedom, Security and Justice. He explains how over the years a powerful and pervasive security discourse has unfolded, with an increasing focus on two functions, i.e., both securing the functioning or smooth operation of the internal market and ensuring a secure marketplace. Fichera discusses whether AFSJ as such can be constructed as having an autonomous meaning. Thereafter he defines the AFSJ as a space that claims to represent universal values and is characterised by a number of paradoxes, in particular a tension between its normative and its imperialistic facets. Finally, Fichera explores the notion of security as a technique of governance and compares it with the notions of freedom and justice, viewed as somewhat narrow and incomplete. In short, his chapter helps to set the scene for what we are actually debating in contemporary AFSJ law.

The connection between human rights and the AFSJ is explained and critiqued in the final chapter of Part I by Dorota Leczykiewicz. Human rights in the AFSJ sphere act not only, as in every area of EU law, as a standard against which Member State and EU action is assessed, but also as a prominent feature of the acquis, that is to say, many legislative acts have as their very purpose the enhancement of human rights protection. Even so, Leczykiewicz identifies how rights create tensions in the context of AFSJ and explains, with reference to individual policy spheres of activity, how the Court of Justice brings the protection received by human rights within EU law to bear on AFSJ law. The picture revealed is mixed but the trend is clear from these prominent findings; a resistance to intensive human rights review, the use of arguments of effectiveness of EU law to resist human rights arguments and only a limited use of the Charter of Fundamental Rights to infuse EU law in the AFSJ with human rights inspired content. Indeed the chapter argues that the Court’s case law exhibits an extreme version of utilitarianism, which is incompatible with a corrective justice conception of human rights, underlying the ECHR and the Charter of Fundamental Rights.

Part II examines the sector specific area of criminal law, both procedural and substantive, within the AFSJ. It seeks to offer a constitutional and governance analysis of this field and focuses on two of the most auspicious and important criminal law initiatives, namely, the European Arrest Warrant and the proposal to develop judicial cooperation through the development of a European Public Prosecutor. Specifically, Anne Weyembergh and Inés Armada in their chapter chart the operation of mutual recognition by providing an impressive analysis of the law on the European Arrest Warrant and the European Investigation Order. They reflect on the most important features of the principle of mutual recognition order to identify if and how it contributes to the establishment of a true EU area of criminal justice. They conclude that the principle has undergone important changes, and that it faces numerous challenges in today’s AFSJ. Anneli Albi then examines the constitutional questions facing the EU when enforcing supranational law in the national arena and what it means for the EU criminal law project. She queries the intentions of the EU and explains why a view from cooperative constitutionalism could offer a more fruitful pathway for EU integration in AFSJ matters. Specifically she discusses how the European Arrest Warrant system could be recalibrated towards a greater responsiveness to classic substantive constitutional values. Thereafter she explores two broader implications of the above argument for the future development of the EU’s AFSJ. The first concerns the question whether in addition to changing legal thinking and the mindset in the field of constitutional law, autonomous EU law may have changed the legal thinking and vocabulary in the field of criminal law. The second is a broader discussion about harmonisation and the balance between uniformity and diversity in the field of criminal law in Europe.

In his chapter, Gerard Conway focuses on one of the most contentious and potentially transformative topics of EU criminal law; namely the European Public Prosecutor (EPP). He charts the history and current and ongoing developments related to the EPP, highlighting details of structure, competence, relationship with national authorities and the important question of accountability. In doing so Conway discusses the constitutional question of the adoption of an EPP and the question of accountability of the EPP.

EU developments in the realm of criminal procedure are investigated further in the final chapter of Part II by Valsamis Mitsilegas. He demonstrates convincingly that, notwithstanding the Treaty legal basis limitations and national concerns regarding an adverse impact of EU law on the diversity and integrity of national criminal justice systems, EU legislation on the rights of the individual in criminal procedure will have a transformative effect for the protection of human rights in Europe’s area of criminal justice.

Next, Part III is focused on the topics of border controls, immigration, asylum and AFSJ paradigms. This part of the book addresses the challenges in EU security and border control and what it tells us about the AFSJ and in recent times, the EU as a ‘crisis manager’. Jorrit Rijpma opens with a very topical chapter on Frontex, the European agency for the management of operational cooperation at the EU’s external borders. Over the past decade, the agency has developed into an increasingly key actor in the management of the external borders of the Schengen area. Its tasks and resources have expanded in line with the consistent call for a reinforcement of the external borders of the EU at political level. Rijpma argues that the development of Frontex and a proposed future European System of Border Guards reveal a strong need to think more carefully about multilevel policing in the AFSJ and also the constitutional implications of further Europeanisation of executive powers in this field.

Dora Kostakopoulou and Ariadna Ripoll Servent continue with this constitutional theme in their chapter, which addresses the relationship between EU immigration law and the right to family life. They provide a critical assessment of the fundamental right to family reunification, and discuss how the Court of Justice of the European Union has limited the Member States’ sovereign prerogatives in the field of migration law and tamed nationalist narratives. Their chapter examines and contrasts the regulation of family reunification in EU internal mobility law, on the one hand, and EU migration law, on the other. They reveal contrasting policy priorities and suggest that while ‘communitarian egalitarianism’ has characterised EU law and policy towards the family reunification of EU citizens, the family reunification of third-country nationals has been governed by a rival policy belief system; namely, by what may be termed ‘restrictive collectivism’. Kostakopoulou and Ripoll Servent make a case for rethinking the restrictive family reunification rules applying to EU migration law and for the coherent application of the normative standards pertaining to the right to family reunion without differentiation on the basis of the sponsor’s nationality.

Subsequently, Cathryn Costello and Minos Mouzourakis offer a pertinent legal analysis of the current and ongoing EU refugee ‘crisis’. In doing so, they provide a chronological account of the development of asylum policies in EU law. Thereafter they identify the main structural shortcomings, namely (1) the lack of legal access routes to the EU to claim asylum, (2) tensions between legal duties at borders (such as non-refoulement, the prohibition on collective expulsion and other human rights obligations) and political discourse and framings of the nature of ‘effective border controls’ and (3) the pathologies of the asylum responsibility mechanism known as the Dublin System. Finally, they examine the legal responses adopted thus far to deal with the ‘crisis’ and ask and answer the question as to what went wrong with the Common European Asylum System. One might have hoped that the foundational flaws of the Common European Asylum System might be considered and addressed as part of the EU’s response to the recent crisis, and yet, as they show, the recent proposals by the Commission seem all but designed to remedy those pitfalls.

Part IV focuses on civil justice as a particular policy area of the AFSJ. This area is often neglected in AFSJ literature, which as Eva Storskrubb points out in her chapter, is regrettable, since important parallels and fruitful comparisons can be made, especially between civil and criminal justice cooperation. Storskrubb’s chapter provides a holistic ‘health check’ of civil justice cooperation today. She reminds us of the longstanding key constitutional and regulatory challenges identified in the field – most prominently competence and the cross-border ‘struggle’ and the absence of a coherent regulatory strategy – and questions whether they remain or have evolved. She identifies continued support for the cross-border limitation of scope in respect of generic EU civil justice measures but notes that this limitation has been breached in the context of several of the recently adopted sector-specific EU rules that regulate procedural issues, such that they also apply in purely domestic contexts. Such developments in the areas of consumer, intellectual property and competition law are examined in some detail. Storskrubb contends that this adoption of procedural rules within core substantive areas intended to support the internal market is remarkable; it raises queries related to national procedural autonomy and also to the relationship between market efficiency and (at least) AFSJ civil justice. Finally, reflections on mutual trust (as underpinning the mutual recognition basis for cooperation in this field) and the novel EU benchmarking of civil justice systems in the EU ultimately strengthen calls for increased regulatory awareness and debate from the justice community at large. Picking up from the mutual recognition regulatory framework, Vesna Lazic, in the second chapter in Part IV, offers a more in-depth analysis of one aspect of private international law cooperation in the EU context, namely the enforcement and recognition of judgments. She identifies different approaches to this topic across a range of relevant legislation – Regulation Brussels I and Brussels Ibis, Regulations European Enforcement Order, European Payment Order and Small Claims Procedure – and questions whether such diversity in legal regulation is desirable and can be justified. She furthermore reflects on how these differences impact on the legal protections of parties and offers some thoughts on how a greater degree of uniformity might be achieved in EU legal instruments.

The book then turns in Part V to the external dimension of the AFSJ and its impact. As the EU’s AFSJ has developed, the externalisation of the different policies and disciplines that compose it has acquired a special place. Indeed, soon after the creation of the AFSJ itself, and in the aftermath of the 9/11 attacks, the European Council called upon the EU to integrate the AFSJ into the different instruments and policies of external action at the disposal of the Union. As a result of the growing number of security challenges that affect the Union on the one side and the emphasis on the externalisation of AFSJ objectives by the European Council on the other, the EU has become a proactive external actor in the different AFSJ fields

In this part of our volume, we asked the authors to take stock of some 16 years of EU external action in the AFSJ and look at how the externalisation of the AFSJ is related to the development of the AFSJ project at large and how this phenomenon affects or is affected by the EU integration process from a broader perspective. In his opening contribution, Claudio Matera looks at how the externalisation of the AFSJ has been developed and argues that, from the very beginning, the policy impetus has not paid attention to a number of constitutional principles and provisions, with the result that on more than one occasion the Court of Justice has intervened to solve disputes among institutional actors. At the same time, Matera shows that the externalisation of the AFSJ is also impacting the dynamics of EU external relations. Indeed, because of the special role that the EU plays in the AFSJ fields, external action in the AFSJ domains innovates the ways in which the EU enters agreements with third countries and international organisations, but also, in this case, often pushing the EU at the edges of its constitutional framework.

In the second contribution of this section, Sara Poli charts the EU anti-terrorism policy and relations with the rest of the world. Her contribution offers a very updated and critical overview of the EU’s anti-terrorism stance. Specifically, she examines the relationship between the Common Foreign and Security Policy and the AFSJ by focusing on the decision-making process and, in particular, on the strengthening of the democratic accountability in the negotiation and conclusion of international agreements designed to prevent and pursue terrorist activities and other forms of crime. She then considers whether the weakening of intergovernmentalism in the external dimension of the AFSJ has resulted in the fortification of the substantive human rights standards, in particular as far as data protection for European citizens is concerned.

Lastly in Part V, Maria Fletcher and Ester Herlin-Karnell examine the AFSJ through the lens of a particularly prominent and influential external relationship; that of the EU and the United States of America. It will reveal how the EU’s security mission is shaping the internal face of the AFSJ while being largely influenced by transatlantic and indeed global dialogues. The chapter shows how the transatlantic relationship is deeply connected to both the security rationale and the market rationale and that this view provides the ...