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"°. 0 , ••

C!1Ap·ŢER 19
- •

CommLlnitarization with Hesitation

Sandra Lavenex

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lntroduction 458 The proliferation of selni-autonOlTIOUS

."; o"· -

The institutionalization of justice and agencies ancl bodies 467

.. ;
, .

"; .
, hOlne affairs coopera tiOl1 459 The flo\v of paliey 470
· . .,
...: . . .
. 1· .
..{" .. lntergovernillental fornlaliza ti on: Asylunl and immigration polie)' 471
: :. :0. • •
... - - .
· .i··· .'
Maastricht's Lhird pillar 460 Police and judicial cooperatioll in
Uneasy C01lllllunitarization: the TreaLies crinlinal lllatters 473
f . . .. -

. . ."1".

t ". .
. . of Amsterdan1 and Nice 460 The agenda for reforn1 475
. . . •.•. .\' . -. ::'> . . . . . . Kevaetors 463
· . : . ; . .. .. . .. .
. J COllclusiollS 476
•• • J." •• ' . •

Organization and capacities of EU

institutions .... 463
- ..
._,,":. :::.:.:-,-'
.-.-" .;-:' ..

. Thereinvention of'
.' in tergovernn1cntalism • . 466

--.. ..... -, .. , .
.. ' ~,.. ."~ ..

.... The control 'ofentry ta, and . residence with i n, . national territory, citîzenshipi
civil . . . , ...
. .

.' .... liberties,law,justice, and order lie very clase to thecoreofthe state. Nevertheless,the
·· Europe has prompted cooperation amonggovernments, .
and in less than ,twenty years, ·justîce and home affairs (JHA) have moved from a
peripheral aspect ta a foc~l'point of European integration. Cooperation among na-
tionaLagencies .·concerned·with combatîngcrime,fighting .terrorism,.managing bor~ .. '
'and ·.asylum,·.·and •. with 'tl1e judicîa! .and···legalimplications.·()frising.
. . . .

cross-bardermovement, has thusbeen 9 radua IJy·movedfromlooseintergovernmen-·

.. tai cooperation -to'more supranatîonal governance within the European UnÎon{EU) .
. These deve!opments,however, continue to bemarked by reservationsand arguments .
. ,--., '
.. . . .
, ..
.: ,.
aboutthe roleofEU institutions, resulting in ahybridinstitutional structurerand poliey
-- --.. ." .: o:.
measureswhichareriddled with delicate compromisesand flexiblearrangements
·, . among themember governments.·
. . ". . . . . - .: .
· ..- . . . : .; .:: .

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458 Sandra Lavenex Justice and Home Affairs 459

Introduction The institutionalization of justice and home

The an1bition involved in creating an 'arca of frcedom, security and justice' (AFSJ)
affairs cooperation
vvithin the EU may be c0I11pared with thal which propelled the single n1C1rket (sec
Chapter 5). Ihe 1997 Treat)' of Amsterdam (IoA) declared the AFSJ a fundamental The dynan1ics of this ne\v area of European integration reside both within and outside
EU objective CArt. 2 IEU), and justice and home affairs UHA) has been one of the the EU and its member states. One important interna1 motor has been the spill-over
busiest policy areas, vvith the Council adopting an average of ten texts a month in from the realization of freedom of n10veluent in the single market (see Chapter 5).
thi5 field since 1999 (Monar forthcoming). ln contrast to econolnic integration, ho\v- The decision in the 1985 Schengen Agreenlent to extel1d the elimination of internal
ever) which bas becn at the core of the European integration projectJHA touches on border controls that had been in place among the Benelux countries since 1948
many issues that are deeply entrenched in national political and judicial systelus and to the five contracting meluber states Belgiuru, France~ Gernlany, Luxelnbourg,
have strong affinities to questions of state sovereignty: since the seventeenth century, and The Netherlands spurred concern about safeguarding internal security and
the state has drawn legitinlacy from its capacity to provide security for its inhabit- prolnpted closer cooperation on questions relating to cross-border phenomena such
ants (Mitsilegas et al. 2003: 7). Cooperation in]HA also has direct in1plications for as ilTIluigration, organized crinle, and drug trafficking. The surge of asylu111-seekers
democratic values and for the balance between liberty and security in the l}nion and from outside \vestern Europe in the 1980s which followed the closure of legal chan-
its member states, and security considerations have hitherto received more attention nels for econOlllic ilnmigration, the phenomena of organized crime and terrorisffi:
than those relating ta 'freedom' or justice'. and the enel of the cold \-var: \vhich opened the EU's previously closed eastern bor-
Ihe development of a common response to immigration and asylum-seekers, the der to hopeful immigrants and criluinal net,vorks, generated external pressures for
joint management of the external borders, the increasing coordination of national closer cooperation.
police forces in the fight against crime, the'approximation of national crinlinal and Ihi5 intensified cooperation could draw an informal caoperation among security
civillaw, and the creation of specialized EU bodies such as Europal, Eurajust, and senrices and la\v-enforcelnent agencies that had developed since the 1970s. These
Frontex to deal \\Tith these matters thus constitute a l1e\v stage in the trajectory included the Pompidou Group on drugs) set up in 1972 withiTI the wider Council
of European integration. These processes reflect the increasing involven1ent of EU of Europe) and the Trevi Group created at the December 1975 European Council in
institutions in core fUllctions of statehood and, conco111itantly, the transforn1ation of Rome ta coordinate anti-terrorist work among EU govemments faced with lri5h,
traditional notions of sovereignty and democracy in the member states. Italian: German, and Palestinian groups operating within and across their borders.
Notwithstanding the strong symbolislll inherent in the creation of a European After 1985 Trevi's mandate \vas extended to other issues of cross-border public arder
area of freedoTI1, security, and justice, the EU 15 [ar fronl having unified: integrated and serious international crill1e such as drug trafficking, bank robbery, and arms
conlnlon policies in ]HA. As in ather areas of EU policy integration has been traffi c king.
increlnental, riddled with delicate cOlllpr0111ises and reservations by luember In 1990 t\-va important international treaties set the guidelines for [uture European
governlnents. Reservations about transfers of responsibilities ta the EU and the cooperation. The Schengen hnplementing Convention (SIC) devised \colnpensatory
donlestic sensitivity of issues such as imllligration and organized crilne in national measures' for the removal of frontier controls, covering asyluln, a common visa
political debates and electoral campaigns have sustained transgovernlnental gov- reginle, illegal in1migratiol1: cross-border police C0111petences, and a COInmon
ernance as the dominant mode in ]HA. Transgovernmentalism combines elen1ents computerized system for the exchange of personal data (Schengen lnformation
of the traditional 'Community nlethod' with more intergovernn1ental ones: it is Systen1 (SIS»). The Dublin Convention on Asylum, concluded among all EU lnember
characterized by the relative weakness of legal harmonization and a foeus an 1110re states: ineorporated the asylum rules a1so included in the SIC and established the
operational aspects of coordinatiol1 bet\veen national authorities. This has gener- responsibility of the state in \vhjch an asylun1-secker 11rs1. enters for the exanTination
ated a peculiar pattern of sharcc1 cOlllpetences bet\\'een sub-national, national, ancl of an 3svluTI1
, claim.
European levels of govcrnance, with lhc continuity of a significant levcl of coopera- Ihus: prior to lhc [ornlal establishlncnt of cooperation in j ustice and hOlile

tion outside the EU1s fonnal institutions. affairs in the 1992 ("l\'1aastricht) Treaty 011 European Union (IEU) an extensivc
This chaptcr starts with a shon revie\ll,' of the enlcrgence and insrir.utionalization net\vorkofcooperation had alreadyc1eveloped which opcrated both outsideand under
of]HA cooperation in the EU treaties before presenting its key aClors and institu-
1 thc overall atlthority of rhe European Council. Cooperation took place on seveTal
tional set-up, and discussing the lllain policy developluents in re1ated f1e1cls and political ancJ executive levcls, ranging fron1 ministers through dircclors-gencral of
recent proposals for reform. thc relcvanllninislries ta lniclcl1c-ranking civil servants, and reprcsentatives of poliee

. . . . :...... ~ .. :. ,.,. .
···-"-T.~ ...
, . ,

460 Sandra Lavenex Justice and Home Affairs 461

forees and otheT agencies. Cooperation an10ng the init.ially five Schengen states vvas
Changes to JHA 'in the Treaty of Amsterdam '
to turn into a 111otor for and (laboratori of integration and had an influential in1pact
and the Treaty otNice
on thc su bsequent comn1unitarization of cooperation (1'vtonar 2(01).
Title IV. Articles 61-9 TEC

Intergovernmental formalization: Maastrichfs third pillar • Articies 62-3 TEC !Ist 'flanking measures' to be adopted within five years (byMay
2004) to cOMpensate for free movement within the EU, including common proce-,
During the intergovernmental conference (IGC) leading to the TElT \ the Dutch ciures for contro!s on oersons at the EU's external borders, common visa policy,
Council Presidencyls draft, which proposed to bring bath the common foreign common measures on asylum seekers, 'temporary protection' of refugees, and im-
and security policy (CFSP) and ]HA into a single integrated structure l \vas migration polic\"
dismissed and instead [oreiun
, bl ) and internal securitv
policv ) relnained prima- e .Artic:es 64, 67-8 TEC maintain the intergovernmental decision-making procedures
rily intergovernmental; in separate (pillars' (on CFSP see Chapter 18). Asyluill (shared right of initiative, consultation procedure with the E~ unanimity voting) until
policy, rules and controls on external border-crossing, in1111igration policy~ and :he end of the transition period in 2004 and impose strict limits on reference to the
police aud judicial cooperation in civil and crhuinal lnatters \vere il1cluded as ECJ.
(matters of COn11TIOn interest' in the third pillar of the IEU. In this vvay the exist- • Jitferem opt-outs for Denmark, the UK, and Ireland.
ing network of committees '}las fonnalized without transfonning the frame\vork
Tîtie VI, Articies 29-42 TE U
of authority and accountabihty (see Lavenex and \Vallace 2005).
• Articles 29-34 TEU provide more detail an 'common actîon' in police and judicial
The loose intergovernmental structure clid not prevent]H.A from becoming the
cooperation in criminal matters, including references to 'operational cooperation'
most active field for meetings convened under the Council of l'viinisters in the late
among la\l'/ enforcement agencies, and collection and storage of data. The ToN speci-
19905. The frequency and intensity of interaction, especially in the area of police fied in Artic;e 31 TEU the functions of Eurojust.
cooperation and organized crÎlne, induced a transfonnation of the ·working practices
e Tne opaque iegal ilistruments of the TEU were replaced by well-established, legally
of interior ministries and of police forees, which had remained among the Ieast in- brndirg legallnstrumen~s, but some of these, the framework decisions, are excluded ,
ternationally minded \vithin national governments, and led ta the emergenee of an from di!'ect effect.
intensive transgovernnlental network (see Chapter 4). • ,D,rticles 35-9 TEU reflect parallel unresolved disputes on the involvement of the EU
By the 1996-7 IGC, the third pillar hacl developed an extensive set of instruments :nstitutions (Commission, Ep, ECJ) in this field; a lengthy section on the ECJ reflects
and institutions. Europol \vas taking shape as a coordinating agency for coaperation sensitivi::y of extending cooperation in legal administration and law enforcement
aUlong national poli ce forces, even though the Europal Convention had not yet been without providing for judicial review.
ratified by aU lllember states. Four comnl0n databases ""vere being set in place: the SIS • Artic!e 40 TE'J extends provision for 'closer cooperatÎon' among smaller groups of
\vas already up and running~ the CUstOlllS Inforn1ation Systelu \vas being conlpu terizecL member states and registers the integrat ion of the Schengen acquis 'into the frame- ,
and the Europollnforn1ation Systen1 aucl Eurodac, the finger-plint database for asy1u1l1- work of the Europear Union' (set out in more detail in an attached protocol).
seekers, were being developed. Ministries ofjustice \vere dra\vn in 1110re 510\\71)'; it \vas
not until the revival of the concept of a European judicial Arca, after the IoAl that
justice l11inistries began ta be drawn inta a sin1ilar European netvvork.
The 'An1sterdam' reforms \vere motivated by widespread dissatisfaction with the
Uneasy communitarization: the Treaties of Amsterdam and Nice \vorking of the intergovernmental procedures. Three \\7eaknesses, in particular, stood
out: anlbiguity about thc legal and constitutional fran1cvvork, evident in the frequeney
Thc cun'ent fran1ework of cooperation in ]HA \-vas shapccl by the treaties of wirh \vhich institutional issues were entangled with policy proposals; the 10\,\J den1o-
An1stcrJan1 and Nice. This frame\vork, vvhich shifted parts ofJl-IA ta the C01TI1TIUni Ly el'atie accountabjlity anei political visihility of th1S essentially bureaucratic fran1ework
pinar \vhile ll1aintaining a 'streall1lined' third pi l1ar 011 policc ancl juclicial cooperation for polie\" Y\Jhic}l allc)\vcd the practice of cooperation to develop far beyond what \vas
.. ~ .

in crin1inal n1atters (P.J CCM), reflecls the delicate con1pro111isc bel\veen intensive reportecl ro rhe European and the national parlianlents or to national pubhcs; anei
transgovernluental cooperatioI1) on the onc hand~ and lhe incr011en lal consolidation 1.hc absencc of 11lechanisllls for cnsuring national ratification or inlplenlentation. The
of supranational structures, on the other (sec Box 19.1). Thc 2007 ToL introduces prospect of eastern enIargCll1cnt aelded to the poHtical sahence of the policy fields
significant changes to JHAl 1110rc far-reaching than thc change.s Vi,Thich that ucaty covercd by JI-IA cooperation aud exacerbated the lirnits of decision-lnaking structures
lnakes ta anv other areas of EU 1a\\1 (see section) (The agenda for reform' belo\v).
" - based 011 unaninlity
462 Sa nd ra La ve ne x
Ju sti ce an d Ho me Af fa irs 463
In Hu en ce u by the se consic1cratiollS, th e W cs ten do rp RefLectio
n Gr ou p pr ep ar in g co op era t.i on ou lsi de th e rn ov isi on s of rhe lrc ati es . Th e InOSl
the 19 96 IG C ag en da str es se d th c im po na nc e of ]H A refon11 pr ol ni nc nt ex ar np lc
by fran1ing il as on e 15 th c Pr um Tr :a ty an Ge rn lan i.n
as pe ct of 'm ak in g Eu ro pe Inorc re icv an t for iLS cit Îze ns ' (M.on itiarive \vi th Au str ia, Belgiu111, Fr an ce ,
19 98 ). Th cs c id ea s ins pir ed the ph ra se ol og y of thc Amsterd~ln1 Tr
ar 19 97 ; lvlcDonagl1 Luxe~~bourg, fh c (\i eth cr lan ds , ane! Sp ain in 20 05 . Fa cih tat in g an d \v id en in
eaty, ,vh ich fral11ed g th e
co nd Ill on s fo r th c ex cb an ge of da ta incl.l1decl in thc va rio us
]H A in ter ms of cs tab lis hin g an 'ar ea of fre ed on l, se cu rit J: an d jus ]H A da tab as es (se c
ric c'. The. justific8- be lo\ v) an d in tcn sif yi ng op er ati on al co op er ati on be tw ce n po Iic e,
tio n of in teg ra tio n wi th rcf ere nc e to cit ize ns ' co nc er ns ha s re rn ain law cn fo rc en lcn t
ed a 111ajor arg u- anei inlInigraL~.on offices, thi s tre aty is also s0l11ctinlcs re fe rre d to
rn en t be hi nd re ce nt rc[ or nls , as ev id en t in thc Co ns tit ut io na l as <Schengen III':
Co nv en tio n an d th e a lab or ato ry for de ep er po lic e co op er ati on am on g a va ng ua rd of
IGC tha t pr ep ar ed th e ToL. a fe"l m em be r
sta tes . As vvith th e in teg ra tio n of Sc he ng en in ta th e Tr ea ty
Th e ToA co nt ain ed su bs tan tia l ch an ge s to th e fra me wo rk for ]l-L:\ of Am ste rd alu th e
(see Box 19.1). Ge rn lan Co un ciJ Pr es id en cy in 20 07 su cc ee de d in ex ten di ng
A ne w Ti tle IV tra ns fer red mi gr ati on an d ot he r re lat ed po lic ies th es e int en s'i fie d
ta th e hr st pillar. form.s .of co .op era tio n to th c re st of th e me mb er sta tes by in co rp
Poliee co op er ati on an d ju di cia l eo op er ati on in cr im in al ma tte or ati ng th e Pr um
rs re ma in ed in a prOVISlons In to EU leg isl ati on .
revised au d len gt he ne d Iit le VI TEU~ an d the Sc he ng en acquis \va
s in teg ra ted in to , Th e as so cia tio n of nOn-111enlber sta tes ex ac erb ate s the va ria
the tre atj es . It is in1 po rta nt to no te th at th e tre ati es do no t pr ov ide fo ble ge om etr y of th e
co mp ete nc es in th e se ns e of cr ea tin g 'c1assic' EU 'ca m m on policies
r cOlnprehensive 'ar~a .of fr~edo_ln, se cu rit y an d ju sti ce '. No rw ay an d Iceland, as lne ulb ers of the
', ev en in the case pr e-
eX lsn ng NordIC con11110n tra ve l are a, ha ve be en in cI ud ed wi th
of the 'co mm on vis a po be y' ar the 'co mm on as yl um sy ste m' , \vh ich in th e Sc he ng en area,
corne clo se st to an d are [u11v as so cia ted \vith th e Sc he ng en an d Dubl]'n C
this idea. J
on ve n t'10115. S

\vI tze r 1an d
en tir ely su rro un de d by Sc he ng en rn eln be rs, bu t no t (li ke No rw
W hi le pr ep ali ng th e gr ou nd fo r a gr ea ter in vo lv em en t of sU'pr ay an d Ic ela nd ) ;
in ]H A, th e ToA br ok e wi th th e tra di tio na l do ctr in e of th e Comn
anational ac tor s me~nber of th e ~:Vider Eu ro pe an Ec on om ic Area, has ne go tia ted a bi lat er al ag re em
en t
in tro du cin g im po rta nt int erg ov ern n1 en tal ele me nt s in to th e first
1uniry me th od by \VhlC~ e.ntered lnt~ foree in M ar ch 20 08 . Li ec ht en ste in ratified a Sc he ng en !D ub
pil lar wh ile inter- aSSOClatlon tre atv In 2008. lin
go ve rn me nt al pr oc ed ur es pe rsi ste d in th e th ird piUar, th ou gh the -
Co nl mi ss io n \vas
no w given a rig ht of ini tia tiv e sh ar ed wi th th e me mb er sta tes .
Na tio na l se ns iti vit ies ab ou t so ve rei gn ty en co ur ag ed a hi gh degr
ee of fle xib ili ty
in th e ap pl ica tio n of co mm on ru les . Denn1ark, for ex am ple , is a 5c
he ng en me mb er Keyactors
and pa rti cip ate s in th e free mo ve me nt are a, bu t is fre e ta adopt rel ev
an t Eu ro pe an
pr ov isi on s as in ter na tio na lla w ra th er th an EU law (th er eb y av oid
ing its dir ec t effect Th e fragm~ntati~n ~f co op er ati on in ]H A is a150 reflected in
an d Eu ro pe an Co ur t of ]u sti ce (E C] ) ju ris di cti on ). lre lan d an d th e ll1ultiplication of
th e UK ma in tai n ac to rs de ah ng \v lth lts de ve lo pm en t; bo th ins ide an d ou tsi de form
the ir op t-o ut from Sc he ng en an d th e lifting of interna1 fra nt ier co ntr al EU str uc tu re s.
ols , bu t ad he re,
on a se1ective basis, an d 5u bje ct to unanilllOUS ag re em en t by 'insid
ers', to the flank-
in g me as ur es of th e ]H A acquis su eh as as ylu m, po lie e an d ju di cia
l co op er ati on in Organizatio" and capacities of EU institutions
cri mi na l ma tte rs CPJ CC M ), an d the SIS (K uij pe r 20 00 : 35 4) .
\\i ith th e ~ew po\v~rs ~ ttr ib ut ed ta it un de r th e Io A, th e C0l11
Ap art fronl the se vo lu nt ar y ex en 1p tio ns [rorn the JH A acquis; the D1ission gr ad ua lly
co nd iti on ali ty ex pa nd ed lts or ga nI za no na i ba sis in JH A. On e of the first mo ve s
of the Sc he ng en ac ce ssi on me ch an ism s ad ds a mo re cOlnpulsory fo of th e nev,' Pr es i-
nn of flexibility de nt of th e COlTIll1ission (1 99 9- 20 04 ), Ron1ano Pr od i, wa s to tra
No t\v ith sta nd ing th eir ob lig ati on to ad op t th e] HA acquis in clu di ns fo rm the sm all
ng the Sc he ng en Ia sk Fo rc e \v hi ch ha d be en es tab lis he d 'w ith in th e Se cr eta ria t of
pr ov isi on s in fuU, th e tw elv c ne w Ine n1 be r sta tes ha ve to first pr th e Co mm iss iol 1
ove the ir ca pa cit y ta un de r th c TE U in to a ne ,\' Di re cto ra te- Ge ne ra l on ]u sti ce au d Ho
in1plelnent effectively the se tig ht bo rd er -m an ag em en t pr ov isi on s be me Affairs, lat er
fore be ing rec og - re na me d Jus~ice~ Li be rty an d Se cu rit y (D G JL S) . It wa s widc1y re
niz ed as ha vi ng ac hie ve d wh at is af tcn ref err ed to as 'Sc he ng en co gn ize d th at th c
maturity~ by the old tas k far ce ,' \vl th on lv~ fo rtv -si x fuJJ-tin1C:' en1JJ1o)'c"'c.s 1·11 1()98 h ·1
111c111bcrs. At the cn d of 20 08 111ne of lhe tw elv e ne w 111Clnber sta - ...... ." . - ,a c. b ce n (e 1 sp cr a le Jy
tcs had pa ss ed thc un. c1crstaficd an d th er ef or e ha d ha d hu le inlJ1act ()n t l·11·rd Pl'J]-
lest~ bu t Bu lga ria an d R0I11ania (b ec au sc of ca pa cit . - . 1. -tJ . al - d cv 1
y dc fic its ) an d Cy pr us (bccause e op mc nt s.
,:lllce lh c crc alJ on of th c nc \v DG , the IlU lll bc r of pe rso nn el ha
of pro ble n1 s rel ati ng ta the pa rti rio n of the isl an d) cu rre nt ly ren lal s bc en co ns tan tly
n ou rside of the lIl cre asccL'la~28 3 on pl ov ee s in 20 02 an d 44 0 in 20 0 0 a 51'Z(' t]1at· I·S
int eg rat ed bo rd er co ntr ol systen1. . .. /_ . U, .-, . ~
.01 11 Il
ta th 8t 01 DG Tr ad c (4)(-) clnŢl]ovcPS) 81·1d DC' M ar kt
Ex isl in g op t-o uL pr ov isi on s an d cx ten de d op po rtu ni tie s .
. . . .~,
/ 1 . .
(4 23 CJnp 1·oy ee s ) . 1ts ex -
for en ha nc cd pe nd Hu rc s a]50 s~nv el ste rp in cr ca sc , fronl €2 19 .4 111illion
co op er ati on un de r th e Treat.ies of An lst erd all l an d Nice ha ve in 20 00 to €4 61 .7
no t prcvcntecl lni lli on. in 20 06 wj th ;-, 5 . ~
. . ,).J ._ pe r ce nt o. L 1e to ta 1 fO\IVl ' ng to .bo rd cr co
., j" .J
in di vi du al me nl be r st~ncs fronl en ga gi ng in selectivc foruls of in nt ro lln ea su re s
tcr go vc rn mc nt al (COJ11111 iS5ion 2008./).

., ..."..
, ." " ' . . .
... ~.-.

464 Sandra Lavenex Justice and Home Affairs 465

- - - _ ._ _ .- - --- • ___ • _ _ _ _ _ _ _ _ _ •• _ . _ _ •• _ - - --------- ---_. -- --- ____ o _ _ _ _ _ _ _ _ _ •• _ _ _ _- - - - - - - - ,

The rcsponsible unit in the Council Secretariat, DG H, \vas 1110fC gcnerously

staffed than the COll1mission Task Forte on JH!\ during the 19905, \vith additional
..ştaff recruited in 1998-9. The ToA furthern10re provided for the separate Schengcn
1I o
c -- cu '-'
C L-
--i::; ---r-:

Secretariat to be integrated i11to DG H. Pern1anent rcprcsentations of th(' lllcn1ber I o

__ '" 1 Q'+J
_::: __ .D C ,_
L- --

+---' ' Ii m
--...J \.....
states in Brussels \\-'cre also drawn in~ aelding legal advisors and afflclais secondecl I cu o UEu8~

- I I O)
._- c
----' I
o .--- c +---'

ro !CJE C ca (/)
frOTIl interior lninistries ta their staffs. >
I I (!) E ----
>- .-
The ]HA Council inherited from Trevi and from the TEU's third piUar a heavily C I
Q)"D .- 1- o
, ccu
Cl) ..-.J >-
1- -,- (!) L-
.~ I ..c E c
hierarchical structure of PolicY-lnaking. It i5 one of the fev/ areas in the Council --
i .Ul E - =:l
c >-
o o
...L =:l o (/)
that has four decision-n1aking Iayers. Agendas for JH-.'\ Councils are prepared by >- «Q)<t
<t li... ""O ~-i ro E
Coreper II, \vhich meets vveekly at ambassadoriallevel. Bet\veen Corerer and the u~c
.- cu
U) ~ >-
working groups, the]HA structure has an additional intern1ediary level cOlnposed of - (/)

Q) .~

special coordinating cOlnmittees, vvhich bring togetherin Brussels senior officials froln U c
o 2
national ministries~ nonnal1y lneeting once a month. The Iov/est level is cOlnposed '0)


_ of working groups of specialists fronl nationallninistrie~ and operational bodies (see "-
Figure 19.1). ---- U)

The forn1er 'Coordinating Comlnittee) (the K4 Comlnittee) \vas renamed the --

Artic1e 36 Comlnittec) and then the Coordinating COlnmittee for Police andJudicial c
c o
Cooperation in Crilninal Matters (CATS). At the Sall1e tiule, its 111andate \vas nar-
(J)+---' E
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rowed to cover only the relnaining third~pillar issues. 1vvo ne\v comn1ittees \\Tere
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(1) CI)
created for those issues falling under the Comnlunity pillar: the Strategic Conlmittee U I• I -o

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on Imlnigration, Frontiers and Asylum (SCIFA) and the COlnmittee an Civil La\v ..L
-; . ro -ro

; (1)-- o
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Matters. Set up initially for a five-year transitiona1 period, these ne\\' comn1ittees of ,,, I
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senior national officials were another sign of the intergovernmentallegacy of ] HA_ i
• W Z

cooperation) anel an anomaly under first-pillar procedures. Rather than phasing out I -.-ro o
this additionallayer of consultatiol1) in SUlTImer 2002 a ne\v 'external borders practi-
tioners~ conln1011 unif, the 'SCIFA+', regrouped the members of the SCIFA \vith the
,1 U
// U
heads of national border control authorities.
_Although not [oreseen by the treaties, the European Councils gro\ving in1portance I
-s (Q
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c --
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has been particularly salient in ]I--IA where it has developed a leacl function through m
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multi-annual strategic progran1lning. The ground \vas laid \\'1th the first European (l) E C/)

Council focused speciflcally on]HA heJ.d under the Finnish Council Presidency in I
I (l) -,-
I --

Tampere in 1999, \vhich set out far-reaching objectives and fixed deadlines for their ,
f E
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grammc \\1i11 be adoprcd by thc European Couneii under the Svveuish Council Presi- m E <t o +---'
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clcncy in autunl11 2009. Thesc strategic planning clocunlcnts \vere devised ta counLer I c
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thc incrClnentalisn1 of cooperation under the Maastricht Treaty and to assure a greater

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efficiency in ilnplenH~nting agreed cOlluninnents. Ho\vever, thc Henv of polieies s110\vS
i --./
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that under thc current institutional procedures aneI given thc cloll1esLic sensitivity of I I
the fidel, a cerLain gap betV\wen anlbitions and in1pletnentaLion persists (sec bdo\v). -
o.... 0_
The n10st rcmarkable change in the fo rIn al decision-lnaking structllre bas o
been the slrengthening of thc role of the European Parlialnent CEP-) vvith the
rcalization of the co-clecisioll proccdure for lnOSL aspccts of ]H/\ that fall uncler _____ - _. __ '_'-' _--_ _ -1
: :-,..~,. . -. . ,._~.. .
. .... - .
.v .

Justice and Home Affairs 467

466 Sandra Lavenex

thc first pillar: visas, bordcr control, irrcgular migratlon, asyluffi policy, and jucli- Over tilnc, 1.hc)' have devclopcd cxtensivc substructures and expert working groups
ciaI coopcration in civi113\v. Until 2005, v.,rhen the transitional pcriocl of thc IoA charged with 1hc ilnplelnentation of proj eCls. ]n 2(09) cighteen projects in the L-ielels
expircd, the EP had not been granted any powers to all1encl or block legislation of counter-terrorisnl, organized crilne, and nligration were being conducted basecl
hy the Coullcl1 and lhe Council had onl1' 1.0 consult thc EP prior to adopting a an t11e conclusion~ of 1hc 111inisterial n1eetings in Heiligendamnl and Stratrord-upon-
11lCaSure a requirclllent that was repcatedly violated (lavcnex 2006a), In ilS Avoll i Il 2006.
. June 2006 Rcsolutiol1 on the AF5j, thc EP explicitly cOll1plained that il oben chel A second forun1 in]HA is 1.he Salzburg Fonlill [ounded in 2000
not get a11 of the preparatory dOeUTI1cnts neeessary to participate in the decision- on the initiative of Austria and involving Austria, the Czech Republic~ Hungar)~
making process from the outset. The Council's failure to comply \vith the con- Poland; Slovakia, and Slovenia. In 2006 Ron1allÎa and Bulgaria joined the group and
sultation requirements had been a topie of contention during severallegislati've Croatia has been participating as an observer since 2006. Like the G6, this group
proc·edures and had led the EP to file legal complaints before the EeJ, including lneels t-vvice a year at ministerial level and has a rotating presidency. It has created
concerning the 2003 Family Reunification Directive and the 2005 Asylum Pro- substructures for operational cooperation including working groups on \vitness pro-
tec[ion~ country of origin infornlation, traffic police, Schengen evaluation, exehange
cedures Directive.
As co-decision has not been extended to the third pillar, the EP's involvement of DNA data, and n1ajor events.
in matters under the third pillar has been even less satisfactory. In arder ta allo\v Both groups see their role in the elaboration and testing, in a smaller context of
it a real oppartunity ta exan1ine and, where necessary, ta 5uggest amendn1ents to like-n1inded sta les OI con tiguous neighbours, of n1easures that ean subsequently
proposed measures, the EP n1ust be given al least three monlhs. Despite a n1uch be exponed to alI member states. \:\/hereas both face criticislU fOI CirCUlTIVent-
ilnproved inter-institutional dialogue, relations between the EP and the Counei} ing the oHicial in5titution5 of the EU and for their lael<. of transparency and
continue to be contentious, and the EP has tried ta enhance its grip also an third- accountability, the composition of the G6 based on country size has faced par-
piUar legislation. Given that third-pillar legislation often has elements that eould ticular contention. This not\vithstandin ba , the 2007 Gerrnan Council Presidencv j

faH under the first pillar, sueh as \vith regard to the access by laVvT-enforcement expanded this ll10del of enhanced intergovernmental eooperation by ereating,
authorities to the Visa Infonnation Systeln (VIS; see belo·v;)) lhe EP has sought ta \vith the support of DG ]LS, the so-called Future Group, vvhich is charged "vith
link its assent ta the issues under co-decision to the Councirs consideration of its elaborating priorities for ]HA cooperation after expiry of the Hague Programme,
positions an the third-pillar issues negotiated under the consultation procedure, i.e. frOlTI 2010 to 2014. Lilze the G6 and the 5aIzburg Forum, the Fu ture Group
thus de facto widening its right to co-decision to poliee and judicial cooperation in gathers only the ministrie~ of the interioL and not their partners froln the justice
criminalluatters. Associated quarrels have repeatedly led ro delays in the legislative 11linistries. In order to avoid an arbitran selection of Inen1ber states the Group

, i5 composed of the 'troi1(a' including the outgoing and ineon1ing Presidencies

. .

\\1ith the acting Council Presidency and the Conu11ission serving as co-chairs.
These intergovernnlental structures are renliniscent of the 'Schengen laborat~ry'
The reinvention of intergovernmentalism that drove ]HA cooperation froul 1995 to 1999. vVith the Future Group, the
Faced with the increasingly assertive rale of the Ep, but also \vith the expansion of C0111mission has accepted the perpetuation of variable geollletries in ]HA, even if
ll1ember states participating in ]HA Council meetings 'in a Iargc: \vindo\vlcss COl1- lin1ited ta strategic planning, justified on the basis of efficiency.
ference hall of the CouneiI building in Brussels' acconln10dating 'same 1jO repre-
sentatives of the Presidency, the European Comlnission, the Council Secretariat and The proliferation of semi-autonomous agencies arid bodies
national delegations and speaking in twenty-three different official languages (OeI

and Rapp-Lucke 2008: 23), several 111enlber states, under Gern1an lead have n1ade
Another special characteristic of Lhe governance of the JHA 1S the proliferation of
recourse ta intergovcrnluental fonus of cooperation outside EU structures, The selni-autono1l10US special agencies and bodies. The multiplication of actors and
Prllill Treaty m.entioned abovc is but one manifestation of thi5 trend. In lvlay 2003 thc '\videning of thcir C0111petences over the past eight years have been impressive
the interior lninisters of the five higgest mClnber states Franee, Gern1any~ ItaIy and il1ustrale· lhe clynamis111 of thi5 fidd of cooperation. Yet, given that thc n1Cll1-

Spain, and the UK created the so-called GS in order la try to spred up the lnove bcr 51atcs havc 50 far Dot tran5ferred an)' operational powers to thesc agencies,
towards operational goa1s and to circumvent the lengthy dccision-lnaking processes thei1' capabiliLies havc repeatcclly failed lo Ineet thc expectations. As it stands, thc
of 1.hc CouneiI of Ministers. ln 2006 PolaneI joincd the group} nlaking it the G6. JJ-1A agencics and bodies are 111ainly concerned \vith infonnation cxehange and eo-
Ihe G6 Incet l\vice a yeal' al the 11linisterial 1evel and have a rotating presiclcncy ordination bct\veen nationallavv-enforccnlenl authoritics, often supported by tlle

. _. . _...
:... ,.

468 Sandra Lavenex .- Justice and Home Affairs 469

establishment of databases. The model of governance by this type of agency illus- 2008, thU5' indicating the enduring political salience of border management in
trates the choice for prolnoting European integration through the better coordina- Europe. :This political priority which is attributed ta securing the EU's exter-
tion of nationalla\~l-enforcement systems rather than by replacing them with new nal borders has again been stressed in the European Pact an In1ffiigration and
supranational structures. Asylum adopted under the French Council Presidency in October 2008, vvhich
The earliest agencies were established an the basis of first-pillar secondai-y caUs for strengthening Frontex's own operational resources. Together with the
legislation; the European Monitoring Centre for Drugs and Drug Addiction (EM- suggestion of examining the creation of a European border-guard system, this
CDDA) set up in 1993 in Lisbon, and the European Monitoring Cen tre on Rac- declaratory document hints at the possibility of developing more collective
ism and Xenophobia (EUMC) established in 1997 in Vienna, which in 2007 was capabilities in this area.
replaced by the European Fundamental Rights Agency (FRA). Most subsequent With these new common bodies, the number of comnlon databases has also
developments, however, have taken place in the framework of the third pillar. proliferated. These cammon databases constitute the core coordination instru-
Here the earliest agencywas UCLAF (Unite de coordination de Ia lutte al1ti-fraude) , ment betvveen domestic law-enforcelnent and immigration authorities and are
the predecessor of OLAF, the now communitarized European Anti-Fraud Office meant ta boost their surveillance capacities over ll10bile undesired individuals
(see Chapter 4). The Europol Convention had been adopted in 1995, but it was in the common territory. The data of EU and third-country nationals are stored
not until 1998 that it entered into force, after lengthy national ratification pro- and scrutinized partly under Commission supervision (Eurodac, Customs
cedures, and Europoi became operational a year later. In 1998 the European lnformation System) , but mostly monitored by a specialjoint supervisory author-
Judicial Network was launched, as a predecessor ta Eurojust, the 'college' of ity within the Council Secretariat (Europal and Eurojust databases). The most
senior magistrates, prosecutors, and judges which became operational in 2002, recent development is the establishment of a Visa Information System (\lIS), a
to coordinate cross-horder prosecutions. The European Counci! in Tampere in database with personal information Cincluding biometrics) on every visa applica-
1999 proposed the creation of two new bodies: the European Police College tion. Due ta unexpected technical problems and pa ar strategic planning, the idea
(CEPOL), based in the UK, to develop cooperation between the national train- of a revamped SIS II has not yet materialized, and interior and justice ministers
ing institutes for senior police officers in the member states; and the European have extended the deadline for establishing the system ta June 2009; failing that,
Police Chiefs' Task Force (PCTF) to develop personal and informallinks alnong they will opt for a revision of the current SIS. The last step in this technological
the heads of the various law-enforcement agencies across the EU and ta promote surveillance race has been the decision, in the Pact for Asylum and hnmigration
information exchange. In 2009 an Asylum Support Office was created to gather adopted in autumn 2008, ta establish an electronic recording of entry and exit
and exchange inforlnation an countries of origin and asylum proceedings in the into the EU, covering both EU and non-EU citizens~ and inspired by siInilar de-
member states. The hope is to thereby not only assist countries in implement- velopments in the United States.
ing EU asylum directives but also ta promote the approximation of recognition As in most other areas of ]HA cooperation, security prerogatives in developing
practices through closer coordination. the databases have been granted more attention than the concurrent civil liber-
The most dynamic agency is the Agency for the Managelnent of Operational ties or human rights aspects. Member states have taken more than three years to
Cooperation at the External Borders (Frontex), which was established in War- agree an the Framework Decision 2008/977/jI-IA an the protection of personal
saw in 2005. \iVhile Frontex is primariIy for coordination and risk analysis,- data processed in the framework of police and judicial cooperation in criminal
, i ts mandate was extended considerably in 2007 through the creation of Rapid matters adopted on 27 November 2008. This instrulnent is widely seen as crucial
Border Intervention Teams (RABITs) as a means of providing rapid operational for ensuring adequate personal data protection under these information systems.
assistance for a limited period ta a requesting member state facing a situation of . Yet, in its Decision, the Council has neither taken account of the three verv criti-

'urgent and exceptional pressure' at external borders. The creation of RABITs was cal reports issued by the EP, nor the criticism of the European Data Protection
a reaction to the difflculties encountered in mabilizing the necessary personnel Supervisor.
and equiplnent froln the member states for joint operations such as the HERA The proliferation of actors indicates the strong impetus for lnore intensive co-
I-III operations (2006-7) to tackle irregular lnigra tion from West Africa to the operation in internal security, but it also reflects the tension between, on the one
Canary Islands. Frontex's operational burden-sharing cliluension has been fur- hand, the case for tighter collective policy management and legislative harmo-
ther enhanced through the European PatroI Network (EPN) for Mediterranean nization by the EU institutions and, on the ather, the persistence of integration
and Atlantic coastal waters. This organizational expansion has been backed by by looser transgovernlnental coordination with low levels of transparency and
a steep rise of the agency's budget from € 19 million in 2006 to €70 million in accountability.


...... :;" .. '~ .... '.. ~.i::->. ;~.:.

,.~.-:... .',::' ..
__ '- '!r :-

4'.70 Sandra Lavenex Justice and Honle Affairs 471

PrograllJn1C. Thcse seconcl-gencraliol1 scorcboarels, which are published openly
JHA agenciesand bodies_
on thc COTIln1isSlon's \vebsitc, eont:ain detailed infonnation on inlplenlcntation

• European Monitonng Centre for Drugs and Drug Addiction (EMCDDA), set up in
deficits by inclj.Yidual nleIuber states, aud thus try to induce c0111pliance by 'nanl-
1993 in Lisbon to provide factual information on the Europear"', drug problems, http:// ing anei shaming:. The. scoreboards regularly give a rather mixed picLure of progress in in1.plement-
• European Police Oftice (Europa!), set up in 1999 in The Hague to share and pool intel- ing the VvTork progran11TIes. The COlTIlnission's 2007 ilnpleluentation report con-
ligence ta prevent and combat serious international organized crime, http://www. cluded that, ;The general overall aSSeSS111ent is rather unsatisjactory. A significant number of actions envisaged in the Action Plan ... had to be abandoned or delayed'
• European Police College (CEPOL), set up in 2000 in Bramshill UK to approximate (Coffilnission 2007i: 2).
national police training systems, . The shortcomings of implenlenting cooperation in JHA are perhaps not surpris-
• European Police Chiefs' Task Force (PCTF), set up in 2000 ta oramote exchange, in ing. A constant [ea ture of ]HA cooperation is the pre-elninence of national concerns
cooperation wrth Europal, of best practices and informai.lon on cross-border crime over Cornmission initiatives and, hence, the jostling of short-term national priorities
and to contribute to the planning of operative actions, vl/ithout headouarters and \vith 10ng-tern1 common objectives. Generally speaking, cooperation has focused
v'leb page. 1110St consistently an the fight against irregular nligration and cross-border crime,
• Eurojust, set up in 2002 in The Hague to coordinate cross-boraer prosecutians,
\vhile measures of operational cooperation have been easier to achieve than legisla-
http://www.eurojust.europa,eu. tive harmonization. Insofar as harmonization measures have been adopted, they
• Frontex, set up in 2005 in Warsaw ta coordinate operational cooperation at the exter- have been limited to setting minimum standards, allow nlany exceptions, and leave
nal border, large margins of discretion to the member states.
• European Fundamental Rights Agency (FRA), set up in 2007 in Vienna as the suc-
cessor to the European Monitoring Centre on Racisrn and Xenophobia (EUMC) to
provide the Community and its member states when impiementing CommJnity iaw
Asyium and immigration policy
with assistance and expertise relating to fundamerita! rights, htto./ In contrast to the protracted progress of internal communitarization, particularly
....• European Asylum Support Office, proposed in 2009 to promote the approxima:ion since 2001,JHA has developed a dynalnic external dimension. It now has a foreign-
.. ". -. .
:of national asyl um recognition practices.
: policy agenda of ils O"\VD. One of the most advanced areas of]HA integration i5 asy-
lurn poliey. Substantive harmonization towards a 'common European asylum system
(CEAS) by 2010~ as provided in the Hague Programme, has, however, proved lnuch
more difficult than agreement an the alloeation of responsibility for the examination
of asylum c1aims (see Box 19.3~ Lavenex 2006a).
The fiow of policy Agreement on \vhich forrus of ilnmigration to classify as legal has proved even
more controversial. The main achievements \vere the adoption of t'\1\'0 directives:
The flow of poliey has evolved in the context of the multi-annual \vork prograll1lneS Couneil Directive 2003/109IEC an the status of third-country nationals who are
an the AFS] adopted since 1999. Actual policy developnlents have, ho\ve'ver~ long-term residents in a member state of the European Union and Council Direc-
reInained responsive to the changing conjuncrures of external events and tive 2003/86IEC an the right ta falnily reunification, both adopted an 22 SepteTIlber
national priorities. ~1,oreover, COffilnission monitoring and evaluation reports 2003. The Councifs failure to consult the EP and the possibility that children over
have repeatedly highlighted delays in and deviations frorn the realization of agreed the age of 12 could be excluded froIn the right to, fanlily reunification led the EP
eOlUlni tmcnts. to file el eonlplaint \vith thc EL], \vhich was however rejected (Case C-540/03 of
The extensive use of non-bind ing texlS by the Connei!, the cxpansion of policy 27.6.2006). A COI111nission proposal on the adnlission of inl111igrants for tl1c pur-
objcctives, and thc lack of infringenlcnl procedures in thc third pillar 111otivatcc! the posc of \vo1'k ancl Self-elTlploYll1ent, likc the two before it, has founcllittle support in
Ccnnrnission to introduce half-yearly 'scoTeboards' reports 111onitoring progress thc Council. In October 2007 thc COJIlmission proposed the so-called 'Blne Card',
in inlplelTICnting the treaty aud progralnnlC provisions. The initial reports \;>,'crc \\'hich \voulcl introduce a fast-track procedurc for thc adnlission of highly qualihed
quite general and had linIe ilTlpact on the Couneil's \vork. 1v10ni toring~ ho\vever, third-countrv \vorkcrs and \vould allOVvr thenl econ01l11C lnobilitv within the EU
J - /

v/as reinvigorated the basis of an extensive mandate of the European Council

011 after an initial stay of t\\'O years in thc first country of admission. The COlll111ission
in 2005 with the so-called 'Scoreboarcl Plus' for rhe inlplenlcntation of thc ll.ague justificd the proposal on the grounds of needing to offer attractive conditions in the

- -,
. .~

. .'

472 Sandra Lavenex Justice and Home Affairs 413

Common Europeanasylum system In the absence of a COlnmon policy, cooperatjon regarding the integration of
.- '

third -coun trv na tiona15 1S deal t V.r1 th bv a (soft) mode of eoordination betVvTen the
j J

• The cornerstone of EU asylum policy is the system of exclusive rBSponsibility for. ll1enlber states. These deliberationc; Ho,",v into an EU l-landbook on lntegration for
the examination of asylum claims based an Regulation 343/2003 of 18 February Policy-1\-1.akers; the second edition of Vv'hich was published in 2007 (European Com-
2003, establishing the criteria and mechanisms for determining the rnember state munities 2007). By the end of 2007 a11 11lelnber states were inregrated in the network
responsible for examining an asy!um application. This instrument replaces the Dublin
of '\Jational Contact Points' an integration. The 'Colnmon Basie Principles an lnte-
Convention and its implementation is linked ta the Eurodac database,
gration), adopted on a Dutch initiative in 2004) have remained declaratory and have
• The mutual recognition of asylum determination outcomes im:::liied by the system of
not led to any legislative action.
responsibi!îty allocation necessitated minimum standards on reception conditions,
Froln the outset of cooperation in the nlid-1980s) the emphasis has been on the
the definition of the term refugee, and asylum procedures. These 'Phase l' directives
fight against illegal immigration rather than on which legal imlnigrants to accept
were adopted only arter significant delays, and are riddied with delicate compro-
(Lavenex and V/allace 2005). Most instrun1ents relate to cntry controls. A 2007
mises and open questions.
Comn1ission proposal for a directive providing for sanctions against etnployers of
• A Commission Green Paper on the future Common European Asylum System
illegal third-country nationals (Comlnission 2007h) has faced the opposition of sev-
(CEAS) of 2007 (Commission 2007J) gives a critica! assessment of progress achieved
so far and identîfies the need for fuller harmonization of substenti've and procedural
eraI menlber states, because of sovereignty concerns, particularly over European
asylum law in order to realize a CEAS by 2010. It also cails for a re-examination of provisions for criminal sanctions in serious cases.
the cornerstone of EU asylum cooperation, the Dublin s\,stem when it st2t8S that
In the light of enduring inlll1Îgration pressure and of the internal resistance
this system 'may de facto result in additional burdens on Member St8tes tnat have to stronger legislative integratioTI, the emphasis of cooperation has moved out-
limîted reception and absorption capacities and that find themseives under particular vvards to the attempt ta engage countries of transit and origin in the management
migratory pressures because of their geographicalloeation', of migration flo\vs. Initially focused on coerclve measures and the conclusion of ,i

• The reluctance to accept supranational rules in this sensitive field of domestic poliey readmission agreements, the failure to ensure con1pliance by third countries has
has shîfted asylum cooperation ta more operational aspects, e,g. through the crea- led to the re-emergence of a more comprehensive vision of ext.ernal migration j

tion of a European Asylum Support Oftice. I
cooperation and the launch of the so-called 'Global Approach~ in December 2005.
o Burden-sharing remains a ehallenge, although the European Refugee =und ta sup- I Consequently, immigration has become a main focus of the European Neighb?ur- Î
port reception, integration, and voluntary return measures in the member states has hood Poliey (see Chapter 17), and consultations have also intensified with Afri-
more than tripled from €216 million (2000-4) ta just under €7CO million (2005-10), can countries. Yet~ given internal bloekages against EU conlpetence aver economic
More significant sums of money have been allocated for border controls i:'] the bor- migratioll) the EU has httle to oHer to these countries in return for their coopera- II
der fund (€ 1,820 million for the same period), as well as to Frontex activities, tion in secu ring the EU)s borders. The visa facilitation agreements offered to eastern
• Particular attention is now pa'ld to cooperation with countiies of transit and origin of neighbours, in exchange for their agreen1ent to readmit their own as well as foreign
. asylum-seekers. Mainly geared toward enhancing migration control in tnose coun-
nationals \\'ho stay irregularly in the EU, remain limited.
tries, this cooperation has focused on the conclusion of readmission agreements as
The ne\vest device in impleluenting the 'global approach: has been the conclusion of
·.wellas, more hesitantly, the promotion of asylum procedures and receplion capaci-
'mobility pannerships~ in \vhich opportunities for (circular~, that is temporaIJ\ labour
ties(Lavenex 2006b; Lavenex and Kunz 2008).
migration into the EU and development cooperation are linked as well as cooperation
on readlnission and the fight against irregular migration. The first mobility partnerships
\vere conduded v.ith Cap Verde and Moldova in 2008. Negotiatiolls an such a partner-
ship \vith Senegal v/ere suspended in 2009 because Senegal was dissatisfied with the
global competition for highly skil1ed workers. The proposal has) ho\vever~ raised EC~s oHer. Indeed, the existing partnerships reflect velY little innovation as they largely
objections fr0111 several member states. New 111ember states, particularly the Czech sUlumarize existjng bilateral cooperation progran1111CS "With individual member states
government in the 2009 Council presidency, have claimed that a schcrne favouring undeI' a nev\' heading (Lavenex 2006h; L1venex and Kunz 2008).
third-country nationals should he introduced only after the [uU inlplcnlentation
of free-TI10Venlent Tights for their own nationals. Several other lllclnber states havc
opposed thc proposal because they \vant 1.0 prioritize their d0111CStic programnlcs Police and judicial cooperation in criminal matfers
(the LJK) or they are hostile to EU cOlnpetencc over econo111ic il1ll11igratîon (A.usrria, The dOlninance ofnon-binding instnlnlcnts and the focus on operational cooperation

Gennanv. and Thc Netherlands).

J ' havc been even stronge.r in the third pillar. One of the lnain developn1ents in police
. ",",
. "
.. ,- ~ =- >* 1<<";':· ..
.~ ;;.:._~--, ,., ..
. . .. .. ~. . '..

47-4 Sandra Lavenex Justice and Home Affairs 475

---------------------- ----------------_._---
eooperation was the decision by thc.JHA Conneil to replace the Europol Convention
European arrest warrant -
with a 'thircl pillar' Decision by 2010 (Council DOCUlnent 5055/07 EUROPOL 2
of ] 9 April 2(08). This will facilitate adaptation of E uropol's lnandate by omitting • The Ţampe~e European Counei! adopted four basic princip!es for establishing el com-
(somctilnes lengthy) ratiucation procedures by national parlialnents and turn it into mall E'Jropean judicial space: mutual recognition of judicial decisions; approxinlation
a regulaT EU agency. Apart [ro111 1.he facilitation of infonnation exchangc betwecn of national substantive arid procedural laws; the creation of Eurojust; and the devel-
nationallaw-enforcement authorities through Europal and its network of European - opment of the exter-nal dimension of criminal law.
Liaison Officers (ELOs), as well as expertise and technical support activities , • The 11 September 200~i :errorist attacks in the US spurred the adoption of the Frame-
integration in police matters has focused on networking and the development of 'vvork Decision on the European arrest warrant in 2002.
C0111mOn operational practices such as through the Police Chiefs: 1as1<. Force and - • The European arrest warrant is a judicial decision issued by a member state with a
the European Police College. These networks are to address the main ilnpedilnent vievv tO -rhe arrest and surrender by another member state of a person being sought
ta more effective cooperation betvveen national police forces~ \vhich is the need for for a c(,minal orosecution or a custodia! sentence, It e!iminates the use of extradition

Inutual understanding and trust between highly diverse domestic systenls of la\v ano is oased an the princiDle of mutual recognition of decisions in criminal matters.

enforcement (Occhipinti 2003). With enlargement both issues the need for tn1st
o Ir: the absence of EU harmcnization of criminal law, the implementation of the EAW
and problems associated with diversity have clearly increa5ed: pro111pting concern has encountered difficulties (Lavenex 2007) .

about how to invigorate the operational aspects of police cooperation. In the • in surn, as in the case of migration, restrictive measures, such as the EAW, have
meantime, the Prum Treaty and the proliferation of intergovenunental consultations I
- been easier to adopt tha:1 those harmonizing the rights of individuals, as illustrated
; -
, by the protracted process of agreeing the Framework Decision on certain procedural
confirm the continuity of concentric circles in thi5 area of cooperation. I
I -
I -- -·I-ights in criminal proceedings that has been on the table since 2004 (Commission
In cOluparison, while cooperation in the judicial sphere was initially slo\ver to '~- .

I . - -
- -2004d) .
develop, it has been one of the lllost dynamie aspects of JHA cooperation since the
Tampere European Council (de Kerchove aud Weyeu1bergh 2002). It has, hov.,rever,
also faced problems of a lack of trust and complex interaction. Thi5 cooperation cen-
tres on the principle of mutual recognition, which fonns thc basis of the Inain instru- airlines flying ta the US ta provide US authorities with information an their pas-
ment adopted so far in this area, the European arrest "varrant (EA\\I, see Box 19.4). sengers, \vas annulled by the Ee] in 2006 because the EP had not been adequately
TelTorist attacks have also spurred cooperation. 1revi had its roots in fighting consulted. The successor agreement, which ren1ains the same in substancc, was
terrorislll, and just ten days after the 9/11 attacks on the US in 2001, the European i. adopted under treat)' provisions that do not require the EP's opinion. PNR has

Council adopted the EU Aetion Plan on Combating Terrorism. The bon1bings in raised grave concerns o.U10ng the EP, the European Data Protection Supervisor
Madrid (March 2004) and London Ouly 2005) indueed l1eN initiatives, such as the (PeteI H,ustinx), and civil liberties groups for failing to comply with European
establishment of a special EU Counter- Terrorism CoordinatoL 1hi5 ne\v office has, data protection rules.
however, had to contend "VITith problems, siInilar to those faced by the other EU agcn- These developments underhne the blurring of distinctions between nations of in-
cies. Ils first representative, Gijs de Vries, stood do\vn fro111 the post in 2007 partly ternal and external security. As with efforts ta combat imn1igration, they move]HA
over his lack of operational powers and partly because of the overall reluctance cooperation closer and closer into traditional dOlnains of the CFSP (sec Chapter 18),
\vithin lllelllber states ta supply inforn1ation regarding anti-ten'or activities ar to 1

develop the legal instruments specified in the Aetion Plan. In 2007, Gilles de
Kerchove, a senior Council official "VIrith extensive]HA experience and international ,

contacts, was appointed to fiU the post.

! . The agenda for reform
The extern al dilnension of poliee and judicial eooperation has also expanded.
Europol, Eurojust , and rrontex havc aU concludccl coopcration agreenlc:nts \vith JH_A occupiecl a central stagc in recent European integration efforts, and the
a series of European and non-European countries; ancl at thc end of 2005 the Trcaty of Lisbon (ToL), having largely to.ken over thc far-rcaching changes pro-
.IBA Couneil aclopted a Strategy on the externa} aspects of ]HA (Council Docu- posed by the Constitutional TIeaty) continucs that trend. Thc justification for the
ment 14366/3/05 REV 3). Cooperation wi th thc US 11a5 been particularly clase Lisbon refornls dra\vs hcavily on public concerns about internal security and citi-
and has spurrecl rnajor controversies both between ElJ institutions and bet\veen ze.ns' cxpe.ctations that the EU should do something about it (e.g. Eurobaron1eter
the EU and civil-rights activists, especial1y in thc arca of clata protection. The 2008). _A second 111otivation is dissatisfaction "VIrith thc implclllcntation of agrced
2004 US-EU passenger nan1e record (PNR) agrcement: \vhich requires European •
cOInn1itlllents in particu lelr in third-pi1lar issues.

.:.- ... ' .. _. . . - .. '-~'_.

, JUSlIce cH1U nUfTle I-\IIdlrS 'U I
4Jb ~a ndra Lavenex ·

The ToL inclucles far-reaching reform proposals that centre on thc'reun111cation' governrnents. In a fidel \vherc conccrns abolIt civil liberties are povverful) these
of Jl-IA .1nto a COll1mon general legal frarnework, and, here\vith) rhe abolition lnethods have regulaTIy favourccl 'security' aver 'freedoll1' and 'justicc'., and they
of the piUar stt:.uClure. The final cOlupromise wiU bring the AFSJ as an arca of posc major problems for scrutin)' and transparency. Cooperation among twentv- - .1

(shared cOlllpetence' closer to the Comn1unity methoc.1 and cxtend qualified seven 111cnlbcr govcrnnlents 111ay increase pressures for comnlon rules and effective
nlajority voting and co-decision to legal lnigration ancl Inost arcas of crin11nal n1onitorÎng of their implementation, and play in [avour of the cxploitation of the
law and policing. Germany's support for this shifl coulel be won, hcnvevcr, only ToL OI' the use of the 'passerel!e' for nl0ving towards thc COlnmunity 11lethocl of
by inserting an explicit clause on the right of lnenlber states to deternline the decision-n1aking. In the absence of political \viU, however, the opposit.e could
nunlbers of economic in11nigrants. It is generally expected that cxtending (first equally \ve11 oeeur. Thc re-elnergence of intergovernnlcntal cooperation outside the
pillar\ decision-making rules will reduce the risks of blockages and lo\vest- EU and the preference of operational coordinatian over legislative harmonization
common-denominator agreements in the Council, thereby increasing the EU's both point in this direction.
decision-making capacity and the quality of those decisions. Furthern10re, the
abolition of current res1rictions an Ee] powers should enhance compliance \vith
]HA legislation. J:.' .. - ---
Apart from_co-decision \vith the Ep, democratic control \vill be enhanced by in- -. 1-<.-..-'- .. : . .

:'1-' - - -:-..-- --
creasing scrutiny by national parhaments) both as guardians of the principles of :. :.
/'-:- .~.:
'. -
-:::t." •. ' - FURTHER READING
· :~- .:: ......
proportionality and subsidiarity and as participants in the evaluation of the vvork · .. -.":-.-

. .. - .
For a fairly com.orehensive overview ofthe JHA acquis see Peers (2007} and Mitsilegas ...

of the ]HA bodies and agencies. The possibihty for national parliaments to block · . ~

.. -


", <-:.-> . . : ..
- - -

a legislative process when it is deen1ed to be in breach of the subsidiarity principle


.. -.

:"::: :~~", ~
- -'
· .. - ... '.
'-. , .
ei: aÎ.(2003). On the development of immigration policy, see Geddes (2008), and onthe . - .- .

· .'. . '.-:~ :.. ..

effects of EU policies on themember states see Ette and Faist(2007).Mitsilegas (2009)'·

-' .' - ~

has, however, also raised concerns about the potential obstructive use of thi5 right in
. .....
deeply pohticized issues such as migration and criminalla\v.
· ~,
' _. . .
gives an excellent introduct'lon Înto EU criminallaw'cooperation,and Occhipintî(2003) an
. . . . . .
o," : - , . - •• " ' • • • •~ •• '

,:.:, :",',

.~ ", ":,'
~-"~ ... , "
poiice cooperation,
Most of these changes can be introduced also irrespective of the ToL through the
use of the so-called (passerelle~ of the existing Article 42 TEU, \vhich allo\vs for the Etts, A., and Falst, T. (2007) (eds,), The Europeaniza tionof National Policies andPoJÎtics of> .
o • • • •• ••• • • • • • •

ImrnigratÎon (Basingstoke: PaJgrave Macmillan), ... .... . . .. ..... ... . . .. .

transfer of third-pillar matters ta the first piUar by a unanimous vote in the Council
Geddes, A, (2008), /mmigration and European In tegra tion: TowardsFortressEurope?, 2nd . . .
of Ministers. In using thi5 possibility, however, the Council 1S free to 'determine the
edn, (fv1 anchester: fViB nchesterUn iversity Press). •. .. ..' .. . .
relevant voting conditions', which means that this 501ution could go beyond or re- . . . . . .

main below the level of communitarization foreseen in the ToL, Mitsiiegas,V(2009), EU Criminal Lav./ (London:Hart).·
. rvlitsilegas, V, Monar) J.,and Rees 'J\I(2003),The EuropeanUnionand InternalSecurity:·
, - '..
. . - - ,

Guardian of the People? (Basingstoke: PalgraveMacmillan), .

· .
- -, -

-:1; - OcchipintÎ, J D. (2003), The Politics of EU PoliceCooperation: Towards a European FBI?

.' ..<. -' . ;

(Bou de r, CO: LV nneR ie nner) .

. .I

Conclusions .'

'.. _. .
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. J

:: ...::-
. - .. ; '.:.' :. :.
- - -
:. .
Peers , S.(2007), EU Justice and Home Affairs Law (Oxford:. Oxford University Press). I,
l·'· --- .
-:-:J:-.~.": ~; '.~. .' .
·. -'_., .
Initially justified in limited terms as compensatory nleasures ta the abolition of inter- ..

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: -.;":.

- , ..-' --. . .

- -
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nal border contro1s, cooperation in]HA, now metaphorically fralned as the creation ·
· .: ..,' .!!

. .

of an 'area of freedolll, security, and justice~, has been elevated to a central o bj ective - .

--. _.
of the EU. The Treaty of Lisbon lists it second after the overall comlnitment to peace ,

: ... '.~.~ ..

promotion, and before the internal market, environn1entaL 01' social policies, ", ~.,.,."

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Beyond these symbolic steps, integration in these sensitive fields of state sover- . -" .":.-:~'

. .
..... :. '.

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eignty renlains cOllstrained by n1ultiple tensions and difficult comproDlises. Anl0ng " -

'. . . '. . .

these tensions the relationship betvveen integration through increased harnl0niza- 1', .
· -" ..
.' .

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, . . -.'

. tiOll and centralized ElI structures on the one hand and through enhaneed coordina- ·- ,.
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tion of national structures on the other renlains unsettled, .. .
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There are linlitations an what can be achievcd through dependence an -t~-:--;"

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transgovernmenta] networks, Inutua1 recognition, and initiatives by menlber ·
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