Developing European Internal Security Policy

After the Stockholm Summit and the Lisbon Treaty

Christian Kaunert, Sarah Léonard

• Publisher: Routledge
• Year: 2014
• eBook ISBN: 9781317978978
• Topic: History
• Subtopic: Military & Maritime History
• Index: History

The European Union (EU) is making strong inroads into areas of security traditionally reserved to states, especially into internal security, or Justice and Home Affairs. The Area of Freedom, Security and Justice (AFSJ), as it has been renamed in the Amsterdam Treaty, has seen significant policy developments since the late 1990s. In fact, there has been no other example of a policy-making area making its way so quickly and comprehensively to the centre of the treaties and to the top of the EU's policy-making agenda. After major treaty revisions in Maastricht, Amsterdam, Nice, and, finally the Lisbon Treaty, which entered into force on 1 December 2009, as well as an increased political impetus through the European Council Summits in Tampere (1999), the Hague (2004), and Stockholm (2009), the area appears as one of the most promising policy fields for integration in the EU in the foreseeable future. This process has deepened even more significantly after the terrorist attacks on 11 September 2001 in the United States, on 11 March 2004 in Madrid, and on 7 July 2005 in London.

This book is the first to analyse these hugely topical developments in European internal security at both the treaty and policy levels, as well as its implementation at the national level, from various disciplinary perspectives (political science, law, criminology, etc).

This book was published as a special edition of European Security.

An open and secure Europe? Fixity and fissures in the area of freedom, security and justice after Lisbon and Stockholm

Dora Kostakopoulou

School of Law, University of Manchester, Manchester, UK

The Lisbon Treaty’s depillarisation of justice and home affairs (JHA) cooperation represents a major break from the past. It opens the way for the full involvement of the Commission, the European Parliament and the European Court of Justice, an involvement that is bound to influence the substantive scope, and perhaps liberalise, legal and policy output in the years ahead. A different form of cooperation in area of freedom, security and justice institutionally and substantively is digging out its space within the present, security-oriented and traditionally executive-driven architecture. The Stockholm Programme and the proposed Action Plan are a reflection of this. Present in them are aspects of the Hague Programme and the logic of control and surveillance. But there also exist vessels of less ideology-driven policies, pragmatic responses to JHA challenges and respect for citizens’ rights, human rights and the rule of law. Whether the latter paradigm, which is wrapped up within the logic of security, remains confined and crammed in the next five years or will be given room to grow remains to be seen.

The European Union’s (EUs) area of freedom, security and justice (AFSJ; formerly known as justice and home affairs cooperation) has grown out of an institutional journey of remarkable experimentation and cautious trust-building among the Member States (MS) which has been both surprising and gripping. When the journey in the EU formally began in the early 1990s with the establishment of the so-called third pillar of the Treaty on European Union (TEU 2002) (in force 1 November 1993), nobody could have envisaged its road and turns in the 15 year period that followed.¹ Nor could one have predicted the incremental and quick transition from the TEU’s diluted intergovernmentalism to partial Communitarisation at Amsterdam, via the insertion of Title IV EC for migration, asylum, third country nationals and civic law matters, and to full Communitarisation in the aborted Constitutional Treaty and the Lisbon Treaty (2007) (in force on 1 December 2009).

Given the fact that MS have not traditionally welcomed a possible loss of sovereignty in areas of high politics such as policing, judicial cooperation in criminal law, migration and asylum policy, the smooth depillarisation of the AFSJ appears to be a remarkable, albeit unforeseen, detour from the original itinerary. This detour has made secretive and national executive-driven decision-making a thing of the past thereby opening up new roads for better and more efficient law making in AFSJ matters. It has also made the EU more open and accountable by infusing the AFSJ with effective parliamentary supervision and judicial scrutiny. In the course of different, structured processes of cooperation, MS have finally realised not only the many things they have in common and that mutual trust results in enhanced capacity for action, but also the irrelevance of national borders and domestic frameworks of control for challenges that by definition cannot be confined within national borders, such as terrorism, drugs trafficking, international crime, refugee matters and increased human mobility (Walker 2004, Peers 2006, Kostakopoulou 2007).² Accordingly, the search for improved institutional arrangements and better law making and policymaking eventually led to the road that was not taken at the very beginning.

The ‘circuitous’ road to the ordinary Community method has also been accompanied by positive integration measures, that is, ambitious legislative initiatives, and the embedment of the principle of mutual recognition³ in the Lisbon Treaty (see Chapters 3 and 4 of Title V on the Area of Freedom, Security and Justice). Notwithstanding the recent transformation of governance in the AFSJ which holds the promise of a more efficient, accountable, transparent and democratic decision-making (White 2003, Compare Peers 2004), a constant feature of justice and home affairs (JHA) cooperation in all its institutional forms thus far has been the prevalence of a security-centred paradigm. Institutional restlessness did not alter this underlying substantive logic. In the past, the fundamental principle of free movement characterising the first pillar was contrasted with the ‘unfreedom’ of the third pillar which had depicted asylum, migration and matters relating to third country nationals as security threats alongside terrorism and transnational crime. The removal of internal frontiers facilitated the spread of a number of discourses on Europe’s alleged security deficit thereby enabling, among other things, the securitisation of migration and asylum, that is, their depiction as existential threats requiring measures beyond the bounds of ordinary politics (Weaver 1995, Buzan et al. 1998). The creation of a chain of equivalences among organised crime, migration and terrorism resulted in the creation of what Bigo and Leveau (1992) has termed an ‘internal security field’ in which irregular migration, crime and terrorism were placed on a single security continuum. It is true that most policy observers as well as scholars believed that the bifurcation between the free movement paradigm, on the one hand, and the security paradigm, on the other, was the by-product of the different institutional configurations of supranationalism characterising the first pillar and intergovernmentalism characterising the third pillar, respectively (Monar 1998, 2001, Kostakopoulou 2001). But as the third pillar began to dismember at Amsterdam first and later on in the aborted Constitutional Treaty, the security paradigm began to permeate the first pillar and to be promoted at the expense of freedom. Accordingly, not only was European citizens’ freedom to cross borders (positive freedom) accompanied by a negative conception of freedom, that is, freedom from danger, risk or fear (including the perceived threat of irregular migration), but the latter, which presupposes security measures, was elevated into a precondition for the former (Huysmans 1998, 2002, Kostakopoulou 2000, Bigo 2004, Lindahl 2004, 2010) As freedom and security became closely aligned and the external environment became more uncertain and risk-ridden, the concept of security stretched both conceptually and geographically (Bigo 2002, Andreas 2003). Internal and external security also became closely linked, as attested by the presence of internal security objectives in EU external relations and the enhanced cooperation between the EU and third countries. Without any reservation, the EU sought to imitate the protective function of states thereby increasing its social legitimacy. Only a ‘protective’ Union would provide high levels of security for its citizens while making free movement in the internal market a reality (Kostakopoulou 2000, Kaunert 2005).

At the Tampere European Council (1999, pp. 2–3), the Heads of State and Government decided that ‘the challenge of the Amsterdam Treaty [was] now to ensure that freedom, which includes the right to move freely throughout the Union, can be enjoyed in conditions of security and justice available to all. It is a project which corresponds to the frequently expressed concerns of citizens and has a direct bearing on their daily lives’. To this end, the Programme agreed at Tampere set out a number of ambitious policy orientations and priorities which would make the AFSJ a reality and prompted the articulation of a number of legislative initiatives in the fields of legal migration and asylum by the Commission.⁴ By contrast, the Hague Programme (Council of the European Union 2004, European Council 2005), the five-year programme that succeeded the Tampere Programme (2005–10), lacked in ambition and had a more prominent security focus in light of the 9/11 terrorist attacks on the World Trade Centre and the Madrid bombing on 11 March 2004. Tackling terrorism, irregular migration and developing an integrated management of the Union’s external borders became the central focus of the Hague policy agenda. In its Action Plan, the European Commission (2005, compare also 2006a, 2006b) attempted to strike a better balance between freedom and security and a similar effort can be discerned in its contribution to the process of the adoption of the successor of the Hague Programme, the Stockholm Programme (European Commission 2009) which is discussed below.

The discussion that follows examines the Lisbon Treaty’s innovations concerning the AFSJ and the new phase of the EU’s AFSJ by comparing and contrasting the legacy of the Tampere and Hague programmes with the policy priorities and recommendations of the Stockholm Programme that was adopted by the Brussels European Council on 11 December 2009. I argue that although the Stockholm Programme does not represent a well-reasoned retreat from the paradigm of securitisation and control that has characterised JHA cooperation since the very beginning, it would be a mistake to assume that the restrictive and security-based logic is unchanging, solid and fixed. The new ‘citizen-oriented’ and ‘rights-based’ perspective is a welcome development, and the ‘reweighing’ of freedom, which is reflected in both the order and number of the Stockholm Programme’s policy priorities, coupled with the Treaty of Lisbon’s new reforms, can set in motion a dynamic whereby the more national executives seek to return to the securitisation paradigm from which they set out, the further they move away from it. But more work remains to be done in designing and implementing common juridicopolitical frameworks in the AFSJ which are coherent, normatively sound and effective.

The ambitious transformation of the area of freedom, security and justice (AFSJ) in the Lisbon Treaty

The Lisbon Treaty, which was signed on 13 December 2007, was the by product of the process of ‘structured reflection’ on the future of Europe that followed the rejection of the Constitutional Treaty in France and the Netherlands in 2005. It entered into force on 1 December 2009 following the positive outcome of the second Irish Referendum (2 October 2009), its ratification by the Czech Republic (13 November 2009) and a favourable decision by the German Federal Constitutional Court (2009). The new Treaty in the main absorbed the Constitutional Treaty’s innovations in the AFSJ.⁵ One of the new objectives of the Union is to ‘offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’ (Article 3(2) TEU). The insertion of this objective enhances the visibility as well as the constitutional status of the AFSJ, since it is no longer associated with the attainment of the internal market and the adoption of compensatory measures for the abolition of internal frontiers.

The New Title V on ‘The Area of Freedom, Security and Justice’ contains a chapter on General provisions (articles 67–76 TFEU) and chapters on policies on border checks, asylum and immigration (2), judicial cooperation in civil matters (3), judicial cooperation in criminal matters (4) and police cooperation (5). The unification of the institutional framework pertaining to migration related matters and judicial cooperation in civil matters, on the one hand, and police and judicial cooperation in criminal matters, on the other is the most significant innovation. Accordingly, qualified majority voting in the Council⁶ and the ordinary legislative procedure (formerly known as co-decision procedure which transformed the EP into a genuine co-legislative body) become the norm⁷ and the exceptional legal instruments of the Amsterdam Treaty are replaced by the Community instruments (Regulations, directives and decisions) which can now give rise to directly effective rights for individuals enforceable before national courts. In addition, the Commission has the right of initiative, be it exclusive in the areas of border checks, asylum and immigration and civic judicial cooperation,⁸ and non-exclusive in criminal judicial cooperation, police cooperation and the ensuing administrative cooperation,⁹ and the European Court of Justice (ECJ) can now exert its jurisdiction over all aspects of the AFSJ, with the exception of reviewing the validity or proportionality of police operations and measures taken by MS in order to maintain law and order and the safeguarding of internal security mentioned above (Articles 276 TFEU and 72 TFEU).¹⁰ Without a doubt, the binding nature of the Charter of Fundamental Rights will aid the ECJ’s scrutiny of AFSJ legislation and will ensure its compliance with fundamental rights across the EU, with the exception of the UK, Poland and the Czech Republic where the Charter is not applicable.¹¹

The Treaty also formalises the institutional role of the European Council which shall ‘define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice’ (Article 68 TFEU). The European Council’s leadership role is thus enhanced and the election of a Council President for a period of two and half years, renewable once, will facilitate policy continuity. The effectiveness of decision-making in this field will also be enhanced by the separation between ‘legislative’ and ‘operational’ tasks and the reinforced coordination of operational collaboration by the new standing Committee within the Council on (broadly defined) ‘internal security’. The new standing committee, which replaces the so called Article 36 TEU Committee, will facilitate the coordination of the action of MS’ competent authorities (Article 71 TFEU), but does not have the power to direct the actions of national police and other authorities in relation to specific actions.¹² Notwithstanding the gains in terms of policy effectiveness, the all embracing concept of ‘internal security’ as well as the fact that the Committee will not be accountable to the European and national parliaments give rise to concern.¹³ There exists a trend towards the securitisation of a number of policy issues and socio-economic problems, such as youth violence, road accidents, forest fires and energy shortages.¹⁴ The application of a security-based approach to such policy areas augments civil society’s anxieties about authoritarian policy-making and the adoption of a European security model characterised by a generalised focus on prevention and the neutralisation of the threat.

Having said this, however, the increase in democratic control, oversight and transparency in JHA matters cannot be underestimated. Greater transparency is also promoted by the amended text of Article 255 EC, now Article 15 TFEU. The latter article reaffirms the link between transparency and participatory democracy by stating that ‘in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies and agencies shall conduct their work as openly as possible’ and that the Parliament and the Council (when it considers and votes on a draft legislative act) shall meet in public. To this end, the right of access to documents applies to the Union’s institutions, bodies and agencies. Although each institution, body or agency shall determine in its own rules of procedure-specific provisions regarding access to documents, Article 15(3) TFEU provides that Regulations will lay down the general principles and limits which govern the right of access and that ‘each institution, body, office or agency shall ensure that its proceedings are transparent and shall elaborate in its own rules of procedure-specific provisions regarding access to its documents, in accordance with the aforementioned Regulations. And under Article 15(3) TFEU, the European Parliament and the Council of Ministers shall ensure publication of the documents relating to the legislative procedures’.¹⁵

Given the chronic lack of democratic control and oversight in JHA matters, the strengthening of the role of national parliaments in the European governance is a welcome reform. National parliaments are now involved in the political monitoring of Europol and the evaluation of Eurojust’s activities and may ‘participate in the evaluation mechanisms’ for the implementation of Union policies in the AFSJ (Article 12(c) TEU). Although it is unfortunate that national parliaments’ participation in the mutual evaluation of the MS’ implementation of Union policies in the AFSJ is discretionary, the position of national parliaments in the EU legal order has been considerably strengthened as a result of their monitoring of compliance of legislation in the AFSJ with the principle of subsidiarity (Article 5(3) TEU, Article 69 TFEU) and the amended protocols on the role of the national parliaments in the EU and on the application of the principles of subsidiarity and proportionality.¹⁶

In addition to the above-mentioned reforms, the substantive scope of the AFSJ has also expanded. Article 67(1) TFEU, which replaces Articles 29 EU and 61 EC, states that ‘the Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal traditions and systems of the Member States’. It also contains explicit references to the framing of ‘a common policy on asylum, immigrati...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Introduction - After the Stockholm programme: an area of freedom, security and justice in the European Union?
• 1. An open and secure Europe? Fixity and fissures in the area of freedom, security and justice after Lisbon and Stockholm
• 2. The area of freedom, security and justice in the Lisbon Treaty: Commission policy entrepreneurship?
• 3. Point of no return? The European Parliament after Lisbon and Stockholm
• 4. Refugee protection as a collective action problem: is the EU shirking its responsibilities?
• 5. EU border security and migration into the European Union: FRONTEX and securitisation through practices
• 6. Towards a common European border security policy
• 7. Post-9/11 EU counter-terrorist financing cooperation: differentiating supranational policy entrepreneurship by the Commission and the Council Secretariat
• 8. Before and after Lisbon: legal implementation as the ‘Achilles heel’ in EU counter-terrorism?
• 9. The iron curtain revisited: the ‘Austrian way’ of policing the internal Schengen border
• Index