Justice and Home Affairs Agencies in the European Union

Christian Kaunert, Sarah Leonard, John Occhipinti

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781138779556
• eBook ISBN:
  9781317674627
• Topic: Política y relaciones internacionales
• Subtopic: Política

This book examines the role of agencies and agency-like bodies in the EU's Area of Freedom, Security and Justice (AFSJ).When the Maastricht Treaty entered into force on 1 November 1993, the institutional landscape of the so-called 'Third Pillar' looked significantly different than it does now. Aside from Europol, which existed only on paper at that time, the European agencies examined in this book were mere ideas in the heads of federalist dreamers or were not even contemplated. Eventually, Europol slowly emerged from its embryonic European Drugs Unit and became operational in 1999. Around the same time, the European Union (EU) unveiled plans in its Tampere Programme for a more extensive legal and institutional infrastructure for internal security policies. Since then, as evidenced by the chapters presented in this book, numerous policy developments have taken place. Indeed, the agencies now operating in the EU's Area of Freedom, Security and Justice (AFSJ) are remarkable in the burgeoning scope of their activities, as well as their gradually increasing autonomy vis-à-vis the EU member states and the institutions that brought them to life.

This book was published as a special issue of Perspectives on European Politics and Society.

INTRODUCTION

Agency Governance in the European Union’s Area of Freedom, Security and Justice

CHRISTIAN KAUNERT^*, SARAH LÉONARD^* & JOHN D. OCCHIPINTI^**

*School of Humanities, University of Dundee, Dundee, UK; **Canisius College, Department of Political Science, Buffalo, NY, USA

ABSTRACT This special issue examines the role of agencies and agency-like bodies in the EU’s Area of Freedom, Security and Justice (AFSJ) – an umbrella term for police and judicial cooperation, border management, asylum and migration, and counter-terrorism – which have acquired increasing importance in the governance of the EU. This introduction reviews the existing literature and sets the scene for the research articles that are included in this special issue. It also argues that future scholarship on these AFSJ agencies would significantly gain by being developed along two research tracks. The first of these would investigate the forces that have led to the creation of these AFSJ agencies in the first place, especially because understanding these factors can shed significant light on where these agencies might be heading in future. The second research track would examine how ‘legitimate’ each of these agencies is, as part of a would-be democratic polity at the EU level.

When the Maastricht Treaty entered into force on 1 November 1993, the institutional landscape of the so-called ‘Third Pillar’ looked significantly different than it does now. Aside from Europol, which existed only on paper at that time, the European agencies examined in this special issue were mere ideas in the heads of federalist dreamers or were not even contemplated. Eventually, Europol slowly emerged from its embryonic European Drugs Unit and became operational in 1999 (Occhipinti, 2003). Around the same time, the European Union (EU) unveiled plans in its Tampere Programme for a more extensive legal and institutional infrastructure for internal security policies. Since then, as evidenced by the articles presented in this special issue, numerous policy developments have taken place. Indeed, the agencies now operating in the EU’s Area of Freedom, Security and Justice (AFSJ) are remarkable in the burgeoning scope of their activities, as well as their gradually increasing autonomy vis-à-vis the EU member states and the institutions that brought them to life.

This special issue examines the role of agencies and agency-like bodies in the EU’s AFSJ – an umbrella term for police and judicial cooperation, border management, asylum and migration, and counter-terrorism – which have acquired increasing importance in the governance of the EU. The AFSJ has seen significant policy developments since the late 1990s (Kaunert, 2010a, b, c). As a result of the major treaty revisions decided in Maastricht, Amsterdam, Nice, and more recently Lisbon, as well as an increased political impetus through European Council Summits in Tampere (1999), The Hague (2004), and Stockholm (2009), this area appears as one of the most dynamic policy fields in European integration.

The rapid development of the AFSJ in recent years has led to an expansion of the scholarly literature on this topic, including legal analyses (Walker, 2004; Peers, 2006, 2012). However, with its focus on policy outputs and the role of the main EU institutions, this literature has, overall, tended to largely overlook the role played by European agencies (in the broad sense) in the AFSJ. For its part, the literature on EU internal security policy (also known as ‘Justice and Home Affairs’ (JHA) or AFSJ) has tended to mainly focus on the issue of the balance between freedom, security and justice in the development of the policy. Most scholars have argued that EU policy developments have been mainly driven by security concerns and that, as a result, freedom, justice, as well as human rights, have been relatively neglected, if not damaged (Monar et al., 2003; Baldaccini et al., 2007; Balzacq & Carrera, 2006; Huysmans, 2006; Guild & Geyer, 2008; van Munster, 2009; Bigo et al., 2010). Other works have focused on examining the policy developments in EU internal security using Security Studies frameworks and concepts, such as ‘homeland security’ (Kaunert et al., 2012b) and ‘comprehensive security’ (Kaunert & Zwolski, 2013). Recently, some literature has also emerged on the external dimension of the EU internal security policies. This has particularly emphasised how the EU has sought, and managed in some cases, to exercise some level of influence on the internal security policies of third states, in particular in its neighbourhood (Balzacq, 2009; Wolff et al., 2009; Wolff, 2009, 2012; Trauner, 2011).

The literature on JHA/AFSJ in general has also been complemented by more specialised works, which have focused on one specific internal security policy. Of all those, the EU counter-terrorism policy has arguably been the focus of most debates (Zimmermann, 2006; Spence, 2007; Eckes, 2009; Brown, 2010; Bures, 2006, 2011; Argomaniz, 2011; Kaunert & Léonard, 2011; Léonard & Kaunert, 2012; Kaunert et al., 2012a; Bossong, 2008, 2012; MacKenzie et al., 2013), whilst the EU asylum and migration policy (Baldaccini et al., 2007; Geddes, 2008; Boswell and Geddes, 2011), EU cooperation on criminal justice matters (Fletcher & Lööf, 2008; Eckes & Konstadinides, 2011), and EU police and judicial cooperation (Anderson & Apap, 2002; Occhipinti, 2003; Guild & Geyer, 2008) have also received some attention. Nevertheless, institutional issues have been relatively neglected overall, apart from some early works focusing on the legal intricacies of the then ‘third pillar’ (e.g., Bieber & Monar, 1995), Kaunert’s works (Kaunert, 2005, 2007, 2010a, b, c; Kaunert & Della Giovanna, 2010) on the role of the European Commission and the Secretariat of the Council in the AFSJ, as well as the emerging literature on the European Parliament’s role (Ripoll Servent, 2010, 2011; Ripoll Servent & MacKenzie, 2011). As a result, little attention has generally been given to the European internal security agencies that operate within the AFSJ, with the possible exception of Europol whose contribution to EU counter-terrorism in particular has been examined by some scholars (Lavranos, 2003; Occhipinti, 2003; Deflem, 2006; Bures, 2011).

With regard to the literature on European agencies, which has been mainly developed by public policy and legal scholars, it remains overall rather limited, especially compared to the literature on US agencies (Trondal, 2010, p. 20). In addition, it has tended to focus on the regulatory agencies of the former first pillar, that is, those that are involved in the application of rules relating to the single market, such as the European Aviation Agency, the Community Plant Variety Office or the European Medicines Agency (Majone, 1997; Krapohl, 2004; Geradin et al., 2005; Gilardi, 2005; Gering & Krapohl, 2007; Coen & Thatcher, 2008; Pierre & Peters, 2009; Roederer-Rynning & Daugbjerg, 2010; Thatcher, 2011). With the exceptions of the works by Busuioc (2010) and Groenleer (2009) on Europol (see also Busuioc et al., 2011, 2012; Busuioc, 2013) and Léonard’s (2009) work on Frontex, public policy experts have rarely chosen European agencies dealing with AFSJ matters as case studies for empirical research. Even less is known about the cooperation that some of these internal security agencies have been mandated to develop with third states and bodies, with the exception of the pioneering article by Kaunert on Europol (2010b). As a result, little is known about European agencies that deal with security matters from a public policy perspective.

Thus, it can be concluded that the role of European agencies in the development of the AFSJ – especially from a practical, rather than formal and legal, viewpoint – remains vastly under-researched. This is problematic given the increasing importance of both the AFSJ in the EU and the apparently growing role of these European agencies within the AFSJ. Consequently, this special issue of Perspectives on European Politics and Society aims to fill this significant gap in the scholarship.

More precisely, the aim of this special issue is to analyse the impact of agency governance on the EU’s AFSJ. The articles included in this special issue make important contributions to the study of AFSJ agencies. Yet, there is much more scholarly work to be done. This special issue suggests that future scholarship on these agencies would significantly gain by being developed along two research tracks. The first of these would investigate the forces that have led to the creation of these AFSJ agencies in the first place, especially because understanding these factors can shed significant light on where these agencies might be heading in future (Occhipinti, forthcoming (b)). This would also help us gain a better understanding of the development of the AFSJ and how it functions more generally. The second research track would examine how ‘legitimate’ each of these agencies is, as part of a would-be democratic polity at the EU level. This would contribute to the broader scholarly debates on the EU’s so-called ‘democratic deficit’, which, apart from some exceptions, have drawn surprisingly little upon empirical work on the AFSJ (den Boer et al., 2008; Occhipinti, forthcoming (a)). These two suggested tracks for future research are examined in greater detail below.

Interest Shapers and Institutional Dynamics

The first track of research should explore the driving forces behind the AFSJ agencies, which entails a number of related questions. Why were these agencies created in the first place? Why were they endowed with particular authority or autonomy at the outset, and for some agencies, what explains why those were later modified? These questions require paying attention to the preferences (or ‘interests’) of key actors as they interact at the EU level. However, another issue to be addressed in future research on the AFSJ agencies is why these actors do not always obtain the outcomes for which they aimed, even after joint decisions are made. Addressing these questions requires researchers to consider what can be called ‘interest shapers’, as well as ‘normative dynamics’ (Occhipinti, forthcoming (b)).

Interest shapers are the factors that form the preferences of the actors that make decisions about the development of agencies in the AFSJ. This includes, for example, Members of the European Parliament (MEPs) and European Commission officials, as well as the representatives of the member states interacting in the Council. Although these actors certainly have different perspectives, they are influenced by similar kinds of motivations when it comes to internal security issues. Interest shapers include the ‘spillover-enlargement effect’, crises and shocks, as well as concerns for pragmatism, national sovereignty and ‘democracy’. The salience of these forces can be examined by researchers to determine what drives actors to create particular agencies in the AFSJ and endow them with certain attributes. Understanding these interest shapers can also help researchers predict future decisions that will affect the development of agencies in the future.

The first of these interest shapers, namely the ‘spillover-enlargement effect’, refers to the real and perceived criminal justice challenges presented by the Common Market and the Schengen area that have been magnified by the expectation of the widening membership of the EU. Here, ‘spillover’ refers to how cooperation in one area of EU public policy can contribute to more integration in another. In this regard, EU cooperation on free movement has helped shape the perceived need for more cooperation to manage borders and fight transnational organised crime; this has been intensified by the constant prospect in the last decades of expanding the Common Market and widening the passport-free Schengen area.

The second set of interest shapers are crises and shocks, which refer to external and internal events. Those include rather sudden and dramatic events that help convince decision-makers to take action on initiatives that might previously not have seemed to be necessary. In this way, crises and shocks simply magnify the importance of challenges associated with the spillover-enlargement effect and heighten the perceived need for action in the minds of decision-makers. The significance of crises and shocks for the AFSJ goes back to the very creation of the Third Pillar. For example, the Intergovernmental Conference leading to the Maastricht Treaty took place in the wake of the end of the Cold War. This not only contributed to the spillover-enlargement effect, but also facilitated new migration flows and sources of organised crime, as mafia groups took root in the collapsed states of Central and Eastern Europe. Moreover, the violent break-up of the former Yugoslavia resulted in a refugee crisis for some members of the then European Community (as well as Austria, which was about to join the EU in 1995). More recently, the terrorist attacks of 9/11 on the United States provided the political impetus for the EU to move forward with a number of initiatives that had been foreseen in the Tampere programme in 1999, but had been stalled in the Council. The subsequent terrorist attacks of 3/11 in Madrid (2004) and 7/7 in London (2005) had a similar effect on other aspects of the AFSJ. Along with terrorist attacks, shocks and crises related to human smuggling and irregular migration, sometimes involving the death of would-be migrants at the European borders, have also helped shape the interests of decision-makers in this policy area. More recently, this kind of crisis has taken the form of the flows of migrants and asylum-seekers that have resulted from the political upheaval of the ‘Arab Spring’.

While the spillover-enlargement effect and the crises and shocks usually shape the interests of decision-makers in the direction of supporting more international cooperation and potentially more active and autonomous agencies in the AFSJ, concerns for national sovereignty sometimes act as a brake on European integration. Some aspects of internal security are simply too sensitive for member states to allow much or any sharing (or ‘pooling’) of their authority – although the spillover-enlargement effect or particular shocks or crises might eventually provide the rationale for this (Kaunert 2010c, p. 47 and pp. 69–73; Argomaniz, 2011, p. 139). These concerns for national sovereignty appear to vary across the EU; for example, they generally appear to be stronger in the UK and weaker in Germany when it comes to AFSJ cooperation and integration. Likewise, concerns for national sovereignty also differ among the political groups in the European Parliament regarding EU initiatives in the AFSJ. Moreover, some officials in the Commission and the Council Secretariat may be sensitive to concerns for sovereignty as well or even share them and, consequently, will not push for greater integration in some areas (Occhipinti, forthcoming (b)).

The remaining interest shaper in this framework, namely the concern for democracy, can also affect the form of initiatives in the AFSJ. The most prominent variant of this interest shaper has been unease among decision-makers about the long-standing relatively weaker role of the European Parliament in the AFSJ. In general, this kind of concern for democracy has motivated decision-makers to increase the powers of the European Parliament in this area. For instance, this has been evidenced by the reforms introduced by the Lisbon Treaty, which have strengthened the role of the European Parliament vis-à-vis Europol, Eurojust, and Frontex, for example. Similar concerns for democracy are also responsible for the granting of national parliaments new authority over EU legislation, including matters related to police and judicial cooperation in criminal matters. Another variant of the concern for democracy is found in the emphasis put by various political actors on the protection of fundamental rights in the AFSJ, especially those pertaining to personal privacy and data protection. These rights are expressed not only in the Lisbon Treaty, but are also highlighted prominently among the goals of the Stockholm Programme. Moreover, the protection of these individual rights is provided by the widened authority of the Court of Justice of the European Union under the Lisbon Treaty. For example, the European Commission can now use the Court as a tool in infringement proceedings regarding the implementation of EU law on police and judicial cooperation in criminal matters. In addition, EU laws, policies and agencies in the AFSJ are now subject to preliminary rulings of the Court when requested by national courts. In contrast, the previous EU treaties allowed this only if the government of a member state had made a formal dec...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Citation Information
• 1. Introduction: Agency Governance in the European Union’s Area of Freedom, Security and Justice
• 2. Beyond Design: The Evolution of Europol and Eurojust
• 3. Frontex as Agency: More of the Same?
• 4. The European Union Counter-terrorism Coordinator and the External Dimension of the European Union Counter-terrorism Policy
• 5. Eurojust and the European Public Prosecutor Perspective: From Cooperation to Integration in EU Criminal Justice?
• 6. Europol and its Influence on EU Policy-making on Organized Crime: Analyzing Governance Dynamics and Opportunities
• 7. Is Europol a Comprehensive Policing Actor?
• 8. A European Transgovernmental Intelligence Network and the Role of IntCen
• Index