The Side Past Times Side Jurist As Well As Domicile Affairs Programme: Everything Changed, As Well As Thus Zilch Tin Change?

By Henri Labayle in addition to Emilio De Capitani 

The Council Presidency has started sailing toward the adjacent stage of the EU's Area of Freedom, Security in addition to Justice. However, "if a human being does non know what port he is steering for, no air current is favourable to him" (Seneca) 

Soon to hold upwards debated past times Coreper (the Member States’ representatives to the EU), the Greek Council Presidency proposals for the hereafter European Council guidelines on the post-Stockholm Programme inwards the Area of Freedom, Security in addition to Justice (AFSJ) are quite disappointing , if non disturbing.  Back inwards Tampere inwards 1999, the European Council (the heads of province in addition to authorities of Member States) succeeded inwards the double challenge of framing  their internal safety inwards a supranational dimension past times preserving at the same fourth dimension the shine development of the European Union machinery. That spirit at nowadays seems far away.

Quite the contrary, the perspective proposed past times the Council Presidency looks quite surreal, if non disconnected from reality. Probably this is non a coincidence, thence that  we own got to consider that such blindness is a deliberate alternative , leading us to wonder , every bit it happens inwards whatsoever skillful detective story , to whom the offense volition hold upwards beneficial...  However what is already clear is that these draft guidelines volition hardly hold upwards inwards the involvement of the European Union citizens (totally ignored past times the text), in addition to non fifty-fifty inwards the involvement of the European Union itself, whose effectiveness volition hardly hold upwards strengthened.

I - The democratic imperative

The recurrent contestation according to which the European citizen is "at the ticker " of the safety concerns of the actors of the AFSJ has overstep a hollow phrase - every bit is the endeavour to bury this infinite inwards commercial considerations.

European Union world sentiment volition non hold upwards mistaken every bit likely volition hold upwards vividly confirmed past times the incoming May European elections. For the showtime time, inwards fact, amongst the traditional criticism of the Union’s democratic deficit in addition to its consequences,  European Union citizens volition hold upwards critical of ane of its chief achievements: the costless displace of persons.

From questioning Schengen cooperation, to the threats of restoring controls at the internal borders, to the increasing fears of the migration challenge, scathing world criticism is rising, focused to a greater extent than in addition to to a greater extent than on the objectives, content in addition to performance of the AFSJ.

Yet this unsafe tendency is manifestly ignored inwards the Council Presidency document. 

Written with a muffled style, the document describes the electrical current province of things every bit if nosotros were inwards an unchanging political in addition to legal landscape, past times closing its eyes to the novel dynamics which are spreading at the nitty-gritty of the mutual space.  But these novel dynamics in addition to events should compel approximately other expect at the possible hereafter of the AFSJ.

1. The institutional context

The showtime lawsuit which should own got been taken into line of piece of job organisation human relationship is the halt of the transitional menses for the measures inwards criminal matters adopted earlier the entry into forcefulness of the Lisbon Treaty (see the electrical current listing here); it volition trigger the total competence for the Court of Justice of the European Union (CJEU), every bit good the corresponding Commission duty to select to justice Member States which own got non correctly transposed the European Union measures. The showtime signs are not encouraging in addition to it is to a greater extent than than probable that on 1^st Dec 2014 nosotros volition discovery that inwards virtually Member States dozens of European Union measures adopted inwards the concluding xv years own got never been transposed.

Moreover with the halt of the transitional menses nosotros hold upwards faced also with the UK of Britain in addition to Northern Republic of Ireland opt-out from those measures, along with the UK’s asking to re-negotiate a possible opt-back-in to approximately of these acts (see the state-of-play on that number here). Apart the legal complexity of such a political in addition to institutional exercise, the enquiry volition arise whether, every bit a lawsuit of the UK of Britain in addition to Northern Republic of Ireland opt-out, UK of Britain in addition to Northern Republic of Ireland citizens volition overstep on to create goodness or non from the same flat of safety in addition to freedoms every bit  the European Union citizens of other Member States.

Another controversial issue, from an European Union citizens’ perspective, volition hold upwards the persistent European Council determination to fence in addition to adopt the novel AFSJ guidelines fifty-fifty though the novel Parliament in addition to the novel Commission are non yet inwards a seat to give their contribution. This conclusion shows clearly how the European Council underestimates the importance of the democratization of  the Area of Freedom Security in addition to Justice. The risk, however, is that this volition hold upwards a short-sighted approach  because without a clear commitment of the EP in addition to of the Commission, the “Lisbonisation” of the one-time Framework Decisions or the adoption of pending legislative proposals (Eurojust, European Public Prosecutor…) volition hold upwards impossible. Also, this would impairment the character of the hereafter dialogue with institutions which volition human activity inwards a maybe dissimilar political context, less opened upwards than earlier to political compromises.

The lack inwards the Council Presidency document of whatsoever critical assessment of the European Union institutions’ organizational choices is also appalling. Take, for instance, the persistent lack of dialogue betwixt interior in addition to justice ministers (as implicitly admitted past times the document itself). 

Take for illustration the Commission alternative to split upwards AFSJ policies betwixt 2 Commission portfolios directly later the long awaited consolidation of the showtime in addition to 3rd pillar, the lack of clear institutional  responsibleness to human face the novel challenges arising from the novel European Union responsibilities on migration in addition to commutation rights, or, concluding but non least, fifty-fifty the means inwards which novel European Union agencies inwards these domains are created without a consistent strategy in addition to a credible democratic accountability.

Similarly, how to justice the long passages devoted past times the Council document to the "external dimension" of the AFSJ, which has non deserved anything except the politically right discourse that had accompanied it since 1998? Everyone knows that this external dimension is far from a success story.  Someone should thence explicate why past times a form of miracle the European Union unusual policy failure should atomic number 82 to a improve resultant when applied to migration or police line enforcement.  Acting inwards a real dissimilar legal in addition to institutional framework how tin the Common Foreign in addition to Security Policy actors hold upwards thence closely intertwined inside the AFSJ policies every bit envisaged past times the Council Presidency document ? It volition hold upwards quite a challenge to frame consistently European Union agencies’ activity, enforcing (by unanimity) the external in addition to internal safety policy, to say zilch of the take to withdraw bureaucrats in addition to diplomats from these policies. For instance, meet the illustration of mobility partnerships with 3rd countries, or the Global Approach to Mobility in addition to Migration or the so-called "policy cycle", all instruments negotiated in addition to implemented without whatsoever credible intervention at European or national level. 

Last but non to the lowest degree the absence of whatsoever reference to the possible outcome of the European Union accession  to the ECHR shows how the Council (and the Governments) own got non yet understood how later the Treaty of Lisbon the European Union’s judges tin hold upwards decisive.  Has anyone understood how rigid the CJEU’s message was inwards the Kadi ruling on freezing assets of alleged terrorists or inwards the Digital Rights ruling on information retentiveness for safety purposes ? Have they non understood that the European Union’s judges own got overstep at nowadays total commutation rights judges with growing responsibilities to response the questions raised past times the EP in addition to European Union citizens inwards the post Snowden phase ?           

2 . The AFSJ Material Context

It has been profoundly shaken, but the Council has non taken into line of piece of job organisation human relationship the touching of this evolution.

First:  transparency should hold upwards the keyword for a legitimate legislative in addition to administrative action.

Second: Protection  of personal information tin no longer hold upwards treated dealt every bit it was earlier Lisbon in addition to the recent CJEU jurisprudence.

Third : novel technologies tin play an essential role inwards the safety in addition to migration domains. However how should nosotros frame their role piece respecting the criteria of proportionality in addition to necessity highlighted inwards the recent European Union jurisprudence ?

II - The challenge of efficiency

An efficient European Union activity inwards the AFSJ is of import every bit its constitutional in addition to political framework. However you lot can’t hold upwards effective without the active back upwards of Member States in addition to of European Union citizens. Again, regrettably the Council Presidency document misses the target also on this perspective.

Surely everyone tin back upwards the principles outlined inwards the document inwards favour of character in addition to efficiency of European Union action. However the implementation of these principles requires credible measures in addition to evaluation procedures of the MS action.

1. The regulation of solidarity in addition to burden-sharing

As late recalled inwards several occasions past times the European Parliament, inwards the AFSJ solidarity in addition to fair sharing of responsibleness cannot hold upwards dissociated in addition to are the reason of the European Union “common” policies on borders, asylum in addition to migration. Solidarity is non thence an facial expression of goodwill but an aspect of the Member States’ collective responsibleness earlier European Union citizens when protecting the same European Union borders. However inwards a form of understatement the document recognises that “…there is no total consensus on the prospect of far-reaching burden-sharing mechanisms (the allotment of beneficiaries of international protection, asylum seekers, irregular migrants in addition to non-removable returnees (3rd province nationals whose render is non possible) fifty-fifty though an of import number of Member States claim that this is the logical lawsuit of the solidarity principle in addition to of the huge electrical current threat they are facing, which risks to disrupt their societies”.

Yet the Council Presidency, instead of proposing a possible strategy also for non-financial aspects of solidarity (such every bit articulation permanent teams in addition to structures), proposes every bit a priority for the coming years to …assess the costs of the European Union in addition to Member States. But this should own got been done years agone (even earlier the ratification of the Lisbon Treaty) or at to the lowest degree during the negotiation of the concluding Multiannual fiscal programmes for the AFSJ for 2014-2020. To enhance in ane lawsuit to a greater extent than such an thought 5 years later the entry into forcefulness of the Treaty of Lisbon in addition to of the Charter looks to a greater extent than every bit a farther excuse to avoid the burden of shared responsibleness every bit written inwards the Treaties. 

2 . Evaluation

According to the Council Presidency document “…an overarching priority for the hereafter should be the character in addition to effectiveness of the European Union law….There is a take to evaluate consistency in addition to effectiveness of the existing legislative framework inwards the JHA expanse ..(and) … to ensure a proper transposition in addition to implementation of the already existing instruments.”

These ideas should hold upwards to a greater extent than than welcome inwards the AFSJ domain where until at nowadays information is rarely sent to the Council and/or the Commission,  many European Union measures are soundless to hold upwards transposed past times a bulk of Member States, in addition to when those information which are available are non comparable (so that it took years earlier sharing comparable information on migratory movements). Such lack of cooperation betwixt the Member States in addition to the European Union institutions is non specific to the AFSJ (as it is widely introduce also every bit regards internal marketplace seat legislation) but inwards the AFSJ the outcome of these shortcomings is a lower flat of trust betwixt the Member States in addition to the take chances of problems when applying mutual recognition measures (be it inwards the asylum domain or every bit regards  judicial cooperation inwards criminal matters).

The Council Presidency rightly refers to Article seventy of the TFEU, which provides for the adoption of measures concerning evaluation specific to the AFSJ. However, thence far this legal reason has been employed (after a rigid confrontation with the EP) exclusively for the Schengen evaluation mechanism, thence it remains to hold upwards seen if it could overstep a reference also for the other AFSJ policies.

But later the CJEU N.S. ruling (C-411/10) a novel generalised cast of mutual evaluation has been created (which is practically ignored past times the Council document) according to which whatsoever national authorisation has the duty to verify “if at that spot are substantial grounds for believing that at that spot are systemic flaws” of commutation rights policies in the other fellow member states.

This concept has at nowadays been mirrored inwards the recent Directive on the European Investigation Order where the legislator acknowledges that “The creation of an expanse of freedom, safety in addition to justice inside the Union is based on mutual confidence in addition to a presumption of compliance past times other Member States with Union police line and, inwards particular, with commutation rights. However, that presumption is rebuttable.(emphasis added) …Consequently, if at that spot are substantial grounds for believing that the execution of an investigative mensurate indicated inwards the EIO would resultant inwards a breach of a commutation right of the somebody concerned in addition to that the executing State would disregard its obligations concerning the protection of commutation rights recognised inwards the Charter, the execution of the EIO should hold upwards refused.”

Conclusions

It has soundless to hold upwards seen if in addition to how the Council Presidency document volition hold upwards taken into line of piece of job organisation human relationship past times Coreper this calendar week in addition to past times the Justice in addition to Home Affairs Council early on inwards June. So far it is only a hanger to hang hopefully novel progressive ideas on.

However the take chances exists that fifty-fifty later the inexplicable acceleration given past times the European Council to adopt the AFSJ guidelines inwards the absence of the Parliament in addition to of the Commission the European Union citizens volition discovery that the emperor is… naked.

Barnard & Peers: chapter 3, chapter 25, chapter 26 

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