Area of freedom, security and justice

EU's home affairs and justice policies

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The area of freedom, security and justice (AFSJ) is a collection of justice as well as migration & home affairs policies designed to ensure security, rights and free movement within the European Union (EU). Fields covered include the harmonisation of private international law, extradition arrangements between member states, policies on internal and external border controls, common travel visa, immigration and asylum policies and police and judicial cooperation.

As internal borders have been removed within the EU, cross-border police cooperation has had to increase to counter cross-border crime. Some notable projects related to the area are the European Arrest Warrant, the Schengen Area and Frontex patrols.

Overview

Over the years, the EU has developed a wide competence in the area of justice and home affairs. For example, the EU operates facilities such as the Schengen Information System,[1] the Visa Information System, the Common European Asylum System, the Eurodac, the EUCARIS, the European Criminal Records Information System, the European Cybercrime Centre, FADO, PRADO and others.

Furthermore, the Union has legislated in areas such as extradition (e.g. the European Arrest Warrant),[2] family law,[3] asylum law,[4] and criminal justice (e.g. the European Investigation Order).[5] Prohibitions against sexual and nationality discrimination have a long standing in the treaties.[6] In more recent years, these have been supplemented by powers to legislate against discrimination based on race, religion, disability, age, and sexual orientation.[7] By virtue of these powers, the EU has enacted legislation on sexual discrimination in the work-place, age discrimination, and racial discrimination.[8]

Organisation

Legislature

The EU legislative organs dealing specifically with the AFSJ affairs are:

Secretariats of both institutions feature also a related structure, the Legal Service.

European Commission

The area comes under the purview of the European Commissioner for Justice, the European Commissioner for Equality and the European Commissioner for Home Affairs. They deal with the following matters: EU citizenship; combating discrimination, drugs, organised crime, terrorism, human trafficking; free movement of people, asylum and immigration; judicial cooperation in civil and criminal matters; police and customs cooperation; and these matters in the acceding countries.[9] The relevant European Commission departments are the DG Justice & Consumers and the DG Migration & Home Affairs.

EC DG Portfolio Name Member state Europarty EP caucus
DG JUST European Commissioner for Justice Didier Reynders  Luxembourg ALDE Party Renew
European Commissioner for Equality Helena Dalli  Malta PES S&D
DG HOME European Commissioner for Home Affairs Ylva Johansson  Sweden

In addition, other EC members supervise services and directorates-general of the European Civil Service, technically not parts of AFSJ, but related to it thematically:

Agencies, decentralised and corporate bodies

As many as ten decentralised EU agencies have been incorporated under the AFSJ policy domain:

Three of the executive agencies established by the European Commission are also active in the domain:

There is also a related decentralised independent body:

Further two related corporate body also exists:

Other institutions and bodies

Other EU institutions and bodies directly involved in the domain include:

Funding

The domain has been financed by four EU funds:

  • Migration & home affairs funds:
  • Justice & fundamental rights funds:
    • Justice, Rights and Values Fund

European crimes

In 2006, a toxic waste spill off the coast of Côte d'Ivoire, from a European ship, prompted the commission to look into legislation against toxic waste. Environment Commissioner Stavros Dimas stated that "Such highly toxic waste should never have left the European Union". With countries such as Spain not even having a law against shipping toxic waste Franco Frattini, the Justice, Freedom and Security Commissioner, proposed with Dimas to create criminal sentences for "ecological crimes". His right to do this was contested in 2005 at the Court of Justice resulting in a victory for the commission. That ruling set a precedent that the commission, on a supranational basis, may legislate in criminal law. So far though, the only other use has been the intellectual property rights directive.[10] Motions were tabled in the European Parliament against that legislation on the basis that criminal law should not be an EU competence, but were rejected at vote.[11] However, in October 2007 the Court of Justice ruled the commission could not propose what the criminal sanctions could be, only that there must be some.[12]

The European Commission has listed seven offences that become European crimes.[13][failed verification] The seven crimes announced by the commission are counterfeiting euro notes and coins; credit card and cheque fraud; money laundering; people-trafficking; computer hacking and virus attacks; corruption in the private sector; and marine pollution. The possible future EU crimes are racial discrimination and incitement to racial hatred;[14] organ trade; and corruption in awarding public contracts. It will also set out the level of penalty, such as length of prison sentence, that would apply to each crime.

History

Origins (TREVI - Schengen - Dublin - Maastricht)

The first steps in security and justice cooperation within the EU began in 1975 when the TREVI group was created, composed of member states' justice and home affairs ministers.

TREVI was an intergovernmental network, or forum, of national officials from ministries of justice and the interior outside the European Community framework, proposed during the European Council meeting in Rome, 1–2 December 1975. It was formalized in Luxembourg on 29 June 1976 at a meeting of the European Council's Interior Ministers. It ceased to exist when it was integrated into the so-called Justice and Home Affairs (JHA) pillar of the European Union (EU) upon the entry into force of the Treaty of Maastricht in 1993.

Council agreement on establishment of TREVI

"The European Council adopted a proposal by the Prime Minister of the United Kingdom that Community Ministers for the Interior (or Ministers with similar responsibilities) should meet to discuss matters coming within their competence in particular with regard to law and order."

The European Council in Rome, p.9 (Conclusions of the meeting, 2 Dec 1975)[15]

The first TREVI meeting at the level of senior officials was held in Rome where the famous Trevi Fountain is located and the meeting was chaired by a Dutchman by the name of Fonteijn (English: Fountain). In some French textbooks, it is noted that TREVI stands for Terrorisme, Radicalisme, Extrémisme et Violence Internationale.[citation needed]

The creation of TREVI was prompted by several terrorist acts, most notably the hostage taking and subsequent massacre during the 1972 Olympic Games in Munich, and the inability of Interpol at that time to effectively assist the European countries in combatting terrorism. While TREVI was initially intended to coordinate effective counterterrorism responses among European governments, it slowly extended its remit to many other issues in crossborder policing between the members of the European Community. Many of the practices and a large part of the structure of the former Third Pillar traced their origins to TREVI.

The first real cooperation was the signing of the Schengen Implementing Convention in 1990 which opened up the EU's internal borders and established the Schengen Area. In parallel the Dublin Regulation furthered police cooperation.[16]

Maastricht - Amsterdam

The Justice and Home Affairs (JHA) pillar was created, on the foundations of the TREVI cooperation, by the Maastricht Treaty in order to advance cooperation in criminal and justice fields without member states sacrificing a great deal of sovereignty. Before the Maastricht Treaty, member states cooperated at the intergovernmental level in various sectors relating to free movement and personal security ("group of co-ordinators", CELAD, TREVI) as well as in customs co-operation (GAM) and judicial policy. The Maastricht Treaty established that, while reaching the objectives of the Union, and notably the freedom of movement, the member states consider the following as areas of common interest under Justice and Home Affairs:

  1. Asylum;
  2. Rules concerning the entrance of external borders;
  3. Immigration policies and policies concerning third countries' citizens:
    • Conditions of entry and circulation for foreign citizens in the territory of the Union;
    • Conditions of residence for foreign citizens in the territory of Member States, comprising families and employment access;
    • Fight against irregular immigration, residence and work of foreigners within the territory of the Union;
  4. Combating illicit drugs where this is not covered by point 7), 8) and 9);
  5. Fight against international fraud where this is not covered by points 7), 8) and 9);
  6. Judicial co-operation in civil matters;
  7. Judicial co-operation in penal matters;
  8. Customs co-operation;
  9. Police co-operation for preventing and fighting terrorism, drugs trade and other grave forms of international criminality, comprising, if necessary, certain aspects of customs co-operation.

With Maastricht, Justice and Home Affairs co-operation aimed at reinforcing actions taken by member states while allowing a more coherent approach of these actions, by offering new tools for coordinating actions. Decisions were taken by consensus rather than majority (which was the case in the European Community areas) and the supranational institutions had little input.

The Justice and Home Affairs pillar was organised on an intergovernmental basis with little involvement of the EU supranational institutions such as the European Commission and the European Parliament. Under this pillar the EU created the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) in 1993 and Europol in 1995. In 1997 the EU adopted an action plan against organised crime and established the European Monitoring Centre on Racism and Xenophobia (EUMC). In 1998 the European Judicial Network in criminal matters (EJN) was established.[16]

Amsterdam - Nice

The Treaty of Amsterdam transferred the areas of illegal immigration, visas, asylum and judicial cooperation in civil matters from the JHA to the European Community pillar, while the extant part of the intergovernmental 3rd pillar was renamed Police and Judicial Co-operation in Criminal Matters (PJCC) to reflect its reduced scope.[17] During this time further advancements were made.The European Police College (CEPOL) was also created.

The treaty was also the first legal act to introduce the concept of area of freedom, security and justice, stating that the EU must "maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime."[18] The first work programme putting this provision into effect was agreed at Tampere, Finland in October 1999. Subsequently, the Hague programme, agreed in November 2004, set further objectives to be achieved between 2005 and 2010.[19]

Nice - Prüm - Lisbon

The Treaty of Nice enshrined Eurojust in the EU treaties and in 2001 and 2002 Eurojust, Eurodac, the European Judicial Network in Civil and Commercial Matters (EJNCC) and European Crime Prevention Network (EUCPN) were established. In 2004 the EU appointed an anti-terrorism coordinator in response to the 2004 Madrid train bombings and the European Arrest Warrant (agreed in 2002) entered into force.[16]

In 2005, the Prüm Convention was adopted by Austria, Belgium, France, Germany, Luxembourg, the Netherlands and Spain in the town of Prüm in Germany, and which has been open to all members of the European Union, 14 of which are currently parties. It’s goal has been to enable the signatories to exchange data regarding DNA, fingerprints and vehicle registration of concerned persons and to cooperate against terrorism. It also contains provisions for the deployment of armed sky marshals on flights between signatory states, joint police patrols, entry of (armed) police forces into the territory of another state for the prevention of immediate danger (hot pursuit), and cooperation in case of mass events or disasters. Furthermore, a police officer responsible for an operation in a state may, in principle, decide to what degree the police forces of the other states that were taking part in the operation could use their weapons or exercise other powers.

Some of the Convention provisions, falling under the former third pillar of the EU, were later subsumed into the police and judicial cooperation provisions of European Union law by a 2008 Council Decision,[20][21] commonly referred to as the Prüm Decision. It provides for Law Enforcement Cooperation in criminal matters primarily related to exchange of fingerprint, DNA (both on a hit no-hit basis) and Vehicle owner registration (direct access via the EUCARIS system) data. The data exchange provisions are to be implemented in 2012. The remaining provisions of the Convention falling under the former third pillar are not yet adopted into EU law.

Lisbon - onwards

Wikisource has original text related to this article:
TFEU: Title V: Area of Freedom, Security and Justice

The 2009 Treaty of Lisbon abolished the pillar structure, reuniting the areas separated at Amsterdam. The PJC areas and those transferred earlier from JHA to the Community were once more reunited to form a single area of freedom, security and justice policy domain of the reformed European Union. The European Parliament and Court of Justice gained a say over the whole area while the Council changed to majority voting for the remaining PJCC matters. The Charter of Fundamental Rights also gained legal force and Europol was brought within the EU's legal framework.[22] As the Treaty of Lisbon came into force, the European Council adopted the Stockholm Programme to provide EU action on developing the area over the following five years.[19] With the strengthened powers under Lisbon, the second Barroso Commission created a dedicated commissioner for justice (previously combined with security under one portfolio) who is obliging member states to provide reports on their implementation of the Charter of Fundamental Rights. Furthermore, the commission is putting forward proposals for common rights for defendants (such as interpretation), minimum standards for prison conditions and ensure that victims of crime are taken care of properly wherever they are in the EU. This is intended to create a common judicial area where each system can be sure of trusting each other.[23]

The border agency Frontex, which is responsible for overseeing the security of the EU's external borders, has been upgraded.[24] This reformed body, now called the European Border and Coastguard Agency, involves having a pool of armed guards, drawn from different EU member states, that can be dispatched to EU countries at three days' notice.[25] The European Border and Coastguard Agency functions more in a supervisory capacity.[26] The border agencies of host countries still retain day-to-day control,[27] and the personnel from the new agency are required to submit to the direction of the country where they are deployed.[28] However, interventions happen sometimes against the wishes of a host country.[29] They include instances such as "disproportionate migratory pressure" occurring on a country's border.[30] For this intervention to happen, the new border agency has to gain consent from the European Commission.[31] The border guards are allowed to carry guns.[32] The agency is also able to acquire its own supply of patrol ships and helicopters.[33]

Future perspectives

The European Union's growing role in coordinating internal security and safety policies is only partly captured by looking at policymaking within the area of freedom, security and justice. Across the EU's other (former) pillars, initiatives related to food security, health safety, infrastructure protection, counter-terrorism and energy security can be found. New perspectives and concepts have been introduced to examine the EU's wider internal security role for the EU, such as the EU's "protection policy space"[34] or internal "security governance".[35] Furthermore, EU cooperation not covered by a limited lens of the Area of Freedom, Security and Justice—namely EU cooperation during urgent emergencies[36] and complex crises[37]—has received a growing amount of attention.

Opt-outs

  States which fully participate
  States with an opt-out that can opt-in on a case-by-case basis
  States with an opt-out

Denmark and Ireland have various opt-outs from the border control, asylum policy, police and judicial cooperation provisions that are part of the area of freedom, security and justice. While Ireland has opt-ins that allows it to participate in legislation on a case-by-case basis, Denmark was fully outside the area of freedom, security and justice till referendum on the 1st June 2022.[citation needed]

Denmark has nonetheless been fully implementing the Schengen acquis since 25 March 2001, but on an intergovernmental basis.[38]

The United Kingdom (a former EU member state which had an opt-out like Ireland) applied to participate in several areas of the Schengen acquis, including the police and judicial cooperation provisions, in March 1999.[39] Their request was approved by a Council Decision in 2000[40] and fully implemented by a Decision of the Council of the EU with effect from 1 January 2005.[41]

While Ireland also applied to participate in the police and judicial cooperation provisions of the Schengen acquis in June 2000,[39] and were approved by a Council Decision in 2002,[42] this has not been implemented.[43]

Criticism

There has been criticism that the EU's activities have been too focused on security and not on justice.[44][45] For example, the EU created the European Arrest Warrant but no common rights for defendants arrested under it.

See also

Further reading

  • Anderson, M., M. den Boer, P. Cullen, W. Gilmore, C. Raab and N. Walker. (1995) Policing the European Union. Theory Law and Practice. Oxford: Clarendon Press.
  • Hebenton, B. and T. Thomas (1995) Policing Europe. Co-operation, Conflicts and Control. New York: St. Martin's Press Inc.
  • Nilsson, H. (2004) ‘The Justice and Home Affairs Council’, in M. Westlake and D. Galloway (eds) The Council of the European Union. London: John Harper Publishing.
  • Oberloskamp, E. (2017) Codename TREVI. Terrorismusbekämpfung und die Anfänge einer europäischen Innenpolitik in den 1970er Jahren. Berlin/Boston: De Gruyter Oldenbourg.

References

  1. ^ "Abolition of internal borders and creation of a single EU external frontier". Europa web portal. Retrieved 10 February 2007.
  2. ^ "European arrest warrant replaces extradition between EU Member States". Europa web portal. Archived from the original on 12 October 2007. Retrieved 4 September 2007.
  3. ^ "Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility (Brussels II)". Europa web portal. Retrieved 5 September 2008.
  4. ^ "Minimum standards on the reception of applicants for asylum in Member States". Europa web portal. Retrieved 5 September 2008.
  5. ^ "Specific Programme: 'Criminal Justice'". Europa web portal. Retrieved 5 September 2008.
  6. ^ See Articles 157 (ex Article 141) of the Treaty on the Functioning of the European Union. Eur-lex.europa.eu
  7. ^ See Article 2(7) of the Treaty of Amsterdam. Eur-lex.europa.eu
  8. ^ Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ L 180, 19 July 2000, p. 22–26); Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ L 303, 2 December 2000, p. 16–22).
  9. ^ Summaries of EU legislation: Justice, freedom and security, Europa (web portal), accessed 22 March 2010
  10. ^ Gargani, Giuseppe (2007). "Intellectual property rights: criminal sanctions to fight piracy and counterfeiting". European Parliament. Retrieved 30 June 2007.
  11. ^ Mahony, Honor (23 October 2007). "EU court delivers blow on environment sanctions". EU Observer. Retrieved 23 October 2007.
  12. ^ "Judicial cooperation". European Commission – European Commission.
  13. ^ "Press corner".
  14. ^ "THE EUROPEAN COUNCIL - ROME (1-2 DECEMBER 1975)" (pdf). Documents in the dossier include: The European Council in Rome, European Community Members to Issue EC Citizens a "European Passport", Declaration of Rambouillet 17 November 1975. December 1975.
  15. ^ a b c Area of Freedom, Security and Justice, European Parliament, accessed 22 March 2010
  16. ^ Glossary: Area of freedom, security and justice Europa (web portal), accessed 22 March 2010
  17. ^ Article 1(5) of the Amsterdam Treaty.
  18. ^ a b Strengthening the European Union as an area of freedom, security and justice[permanent dead link], European Commission July 2008, accessed 16 November 2010
  19. ^ "Council Decision 2008/615/JHA of 23 June 2008 on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime". Official Journal of the European Union. L (210). 6 August 2008. Retrieved 5 January 2019.
  20. ^ "Council Decision 2008/616/JHA of 23 June 2008 on the implementation of Decision 2008/615/JHA on the stepping up of cross-border cooperation, particularly in combating terrorism and cross-border crime". Official Journal of the European Union. L (210): 12. 6 August 2008. Retrieved 5 January 2019.
  21. ^ Can the EU achieve an area of freedom, security and justice?, EurActive October 2003, accessed 22 March 2010
  22. ^ Engerer, Cyrus (22 March 2010) Justice across Borders: Freedom, security and justice in the EU, Malta Independent Online, accessed 22 March 2010
  23. ^ "Regulation of the European Parliament and of the Council" (PDF). ec.europa.eu. Retrieved 14 May 2016.
  24. ^ "Regulation on the European Border and Coastguard" (PDF). ec.europa.eu. Retrieved 14 May 2016.
  25. ^ "Regulation on the European Border and Coast Guard" (PDF). ec.europa.eu. European Commission.
  26. ^ "A European Border and Coast Guard to Protect Europe's External Borders – Press Release". europa.eu. European Commission. Retrieved 14 May 2016.
  27. ^ "Regulation on the European Border and Coast Guard" (PDF). ec.europa.eu. Retrieved 14 May 2016.
  28. ^ "A European Border and Coast Guard to Protect Europe's External Borders". europa.eu. European Commission. Retrieved 14 May 2016.
  29. ^ "Regulation on the European Border and Coast Guard" (PDF). ec.europa.eu. European Commission. Retrieved 14 May 2016.
  30. ^ "Regulation on the European Border and Coast Guard" (PDF). ec.europa.eu. European Commission. Retrieved 14 May 2016.
  31. ^ "Regulation on the European Border and Coast Guard" (PDF). ec.europa.eu. European Commission. Retrieved 14 May 2016.
  32. ^ "Regulation on the European Border and Coast Guard" (PDF). ec.europa.eu. European Commission. Retrieved 14 May 2016.
  33. ^ Boin, Arjen; Ekengren, Magnus; Rhinard, Mark (2006). "Protecting the Union: Analysing an Emerging Policy Space". Journal of European Integration. 28 (5): 405–421. doi:10.1080/07036330600979573.
  34. ^ Kirchner, Emil and Sperling, James (2008) EU Security Governance. Manchester: Manchester University Press.
  35. ^ Olsson, Stefan (ed.)(2009) Crisis Management in the European Union: Cooperation in the Face of Emergencies. Berlin: Springer.
  36. ^ Boin, A., Ekengren, M. and Rhinard, M. (2013) The European Union as Crisis Manager: Patterns and Prospects. Cambridge: Cambridge University Press.
  37. ^ "The Schengen Agreement". 12 December 2013. Retrieved 21 December 2013.
  38. ^ a b "The Schengen area and cooperation". Retrieved 21 December 2013.
  39. ^ "2000/365/EC: Council Decision of 29 May 2000 concerning the request of the United Kingdom of Great Britain and Northern Ireland to take part in some of the provisions of the Schengen acquis". Official Journal of the European Communities. 131: 43–47. 1 June 2000. Retrieved 21 December 2013.
  40. ^ "2004/926/EC: Council Decision of 22 December 2004 on the putting into effect of parts of the Schengen acquis by the United Kingdom of Great Britain and Northern Ireland". Official Journal of the European Union. 395: 70–80. 31 December 2004. Retrieved 21 December 2013.
  41. ^ "2002/192/EC: Council Decision of 28 February 2002 concerning Ireland's request to take part in some of the provisions of the Schengen acquis". Official Journal of the European Communities. 64: 20–23. 7 March 2002. Retrieved 21 December 2013.
  42. ^ "Vol. 698 No. 1: Priority Questions – Deputy Joe McHugh (FG) to minister for justice Ahern re: International Agreements". Parliamentary Debates. Office of the Houses of the Oireachtas. 10 December 2009. pp. 14–15. Retrieved 12 February 2010.
  43. ^ Verbeet, Markus (19 March 2008) Interview with EU Justice Commissioner Franco Frattini: 'The Problem Is not Data Storage, It's Terrorism' Der Spiegel, accessed 22 March 2010
  44. ^ European Arrest Warrant does not overrule human rights Archived 6 June 2009 at the Wayback Machine Sarah Ludford 2 June 2009, accessed 22 March 2010

External links

  • Directorate-General for Justice
    • Website of the Commissioner for Justice, Fundamental Rights and Citizenship
  • Directorate-General for Home Affairs
    • Website of the Commissioner for Home Affairs
  • Summaries of EU legislation: Justice, freedom and security
  • Area of freedom, security and justice (Glossary)
  • Brussels publishes list of first seven pan-European crimes
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