By Henri Labayle and Emilio De Capitani
The Council Presidency has started sailing toward the next phase of the EU's Area of Freedom, Security and Justice. However, "if a man does not know what port he is steering for, no wind is favourable to him" (Seneca)
Soon to be debated by Coreper
(the Member States’ representatives to the EU), the Greek Council Presidency proposals for the future European Council guidelines on the post-Stockholm
Programme in the Area of Freedom, Security and Justice (AFSJ) are quite
disappointing , if not disturbing. Back
in Tampere in 1999, the European Council (the heads of state and government of
Member States) succeeded in the double challenge of framing their internal security in a supranational
dimension by preserving at the same time the smooth evolution of the EU
machinery. That spirit now seems far away.
Quite the contrary,
the perspective proposed by the Council Presidency looks quite surreal, if not
disconnected from reality. Probably this is not a coincidence, so that we have to consider that such blindness is a
deliberate choice , leading us to wonder , as it happens in any good detective
story , to whom the crime will be beneficial... However what is already clear is that these draft
guidelines will hardly be in the interest of the European Union citizens (totally
ignored by the text), and not even in the interest of the European Union itself,
whose effectiveness will hardly be strengthened.
I -
The democratic imperative
The recurrent
statement according to which the European citizen is "at the heart "
of the security concerns of the actors of the AFSJ has become a hollow phrase -
as is the attempt to bury this space in commercial considerations.
EU public opinion will
not be mistaken as probably will be vividly confirmed by the incoming May European
elections. For the first time, in fact, alongside the traditional criticism of
the Union’s democratic deficit and its consequences, European Union citizens will be critical of one
of its main achievements: the free movement 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 public criticism is rising, focused more and more on the objectives,
content and operation of the AFSJ.
Yet this dangerous
trend is plainly ignored in the Council Presidency document.
Written with a muffled
style, the document describes the
current state of things as if we were in an unchanging political and legal
landscape, by closing its eyes to the new dynamics which are spreading at the
core of the common space. But these new
dynamics and events should compel another look at the possible future of the
AFSJ.
1. The institutional context
The first event which
should have been taken into account is the end of the transitional period for
the measures in criminal matters adopted before the entry into force of the
Lisbon Treaty (see the current list here); it will trigger the full competence
for the Court of Justice of the European Union (CJEU), as well the corresponding
Commission duty to bring to justice Member States which have not correctly
transposed the EU measures. The first signs are not encouraging and
it is more than likely that on 1st December 2014 we will discover
that in most Member States dozens of EU measures adopted in the last fifteen
years have never been transposed.
Moreover with the end
of the transitional period we be faced also with the UK opt-out from those
measures, along with the UK’s request to re-negotiate a possible opt-back-in to
some of these acts (see the state-of-play on that issue here). Apart the legal complexity of such a political and
institutional exercise, the question will arise whether, as a
consequence of the UK opt-out, UK citizens will continue to benefit or not from the same degree
of security and freedoms as the EU citizens of other Member States.
Another controversial
issue, from an EU citizens’ perspective, will be the persistent European
Council determination to debate and adopt the new AFSJ guidelines even though the new Parliament and the new
Commission are not yet in a position to give their contribution. This decision shows clearly how the European
Council underestimates the importance of the democratization of the Area of Freedom Security and Justice. The
risk, however, is that this will be a short-sighted approach because without a clear commitment of the EP
and of the Commission, the “Lisbonisation” of the former Framework Decisions or
the adoption of pending legislative proposals (Eurojust, European Public
Prosecutor…) will be impossible. Also,
this would damage the quality of the future dialogue with institutions which
will act in a possibly different political context, less open than before to
political compromises.
The lack in the
Council Presidency document of any critical assessment of the EU institutions’
organizational choices is also appalling. Take, for instance, the persistent lack of dialogue between interior and justice ministers (as implicitly admitted by the document itself).
Take for instance the
Commission choice to split AFSJ policies
between two Commission portfolios immediately after the long awaited
consolidation of the first and third pillar, the lack of clear institutional responsibility to face the new challenges arising
from the new EU responsibilities on migration and fundamental rights, or, last but not least, even
the way in which new EU agencies in these domains are created without a consistent
strategy and a credible democratic accountability.
Similarly, how to
judge the long passages devoted by the Council document to the "external
dimension" of the AFSJ, which has not deserved anything except the politically
correct discourse that had accompanied it since 1998? Everyone knows that this external
dimension is far from a success story.
Someone should then explain why by a sort of miracle the EU foreign
policy failure should lead to a better result when applied to migration or law
enforcement. Acting in a very different
legal and institutional framework how can the Common Foreign and Security
Policy actors be so closely intertwined within the AFSJ policies as envisaged
by the Council Presidency document ? It will be quite a challenge to frame
consistently EU agencies’ activity, enforcing (by unanimity) the external and
internal security policy, to say nothing of the need to remove bureaucrats and
diplomats from these policies. For instance, see the case of mobility partnerships with third countries, or the Global Approach to Mobility and Migration or the so-called "policy cycle", all instruments negotiated and implemented without any credible intervention at European or national level.
Last but not least the
absence of any reference to the possible outcome of the EU accession to the ECHR shows how the Council (and the
Governments) have not yet understood how after the Treaty of Lisbon the European Union’s judges can be decisive. Has anyone understood how strong the CJEU’s
message was in the Kadi ruling on freezing assets of alleged terrorists
or in the Digital Rights ruling on data retention for security
purposes ? Have they not understood that the European Union’s judges have
become now full fundamental rights judges with growing responsibilities to
answer the questions raised by the EP and EU citizens in the post Snowden phase
?
2 . The
AFSJ Material Context
It has been profoundly
shaken, but the Council has not taken into account the impact of this evolution.
First: transparency should be the keyword for a
legitimate legislative and administrative action.
Second: Protection of personal data can no longer be treated dealt
as it was before Lisbon and the recent CJEU jurisprudence.
Third : new
technologies can play an essential role in the security and migration domains. However
how should we frame their role while respecting the criteria of proportionality
and necessity highlighted in the recent
EU jurisprudence ?
II -
The challenge of efficiency
An efficient EU action
in the AFSJ is important as its constitutional and political framework. However
you can’t be effective without the active support of Member States and of EU
citizens. Again, regrettably the Council Presidency document misses the target also on this perspective.
Surely everyone can support
the principles outlined in the document in favour of quality and efficiency of EU
action. However the implementation of these principles requires credible
measures and evaluation procedures of the MS action.
1. The principle of solidarity and
burden-sharing
As recently recalled in several occasions by the European
Parliament, in the AFSJ solidarity and fair sharing of responsibility cannot be
dissociated and are the basis of the EU “common” policies on borders, asylum
and migration. Solidarity is not then an expression of goodwill but an aspect
of the Member States’ collective responsibility before EU citizens when
protecting the same EU borders. However in a sort of understatement the
document recognises that “…there
is no full consensus on the prospect of far-reaching burden-sharing
mechanisms (the allocation of beneficiaries of international protection,
asylum seekers, irregular migrants and non-removable returnees (3rd country
nationals whose return is not possible) even though an important number of
Member States claim that this is the logical consequence of the solidarity
principle and of the huge 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 as joint
permanent teams and structures), proposes as a priority for the coming years to
…assess the costs of the EU and Member States. But this should have been done
years ago (even before the ratification of the Lisbon Treaty) or at least
during the negotiation of the last Multiannual financial programmes for the
AFSJ for 2014-2020. To raise again such an idea five years after the entry into
force of the Treaty of Lisbon and of the Charter looks more as a further excuse
to avoid the burden of shared responsibility as written in the Treaties.
2 . Evaluation
According to the
Council Presidency document “…an
overarching priority for the future should be the quality and
effectiveness of the EU law….There is a need to evaluate consistency and
effectiveness of the existing legislative framework in the JHA area ..(and)
… to ensure a proper transposition and implementation of the already
existing instruments.”
These ideas
should be more than welcome in the AFSJ domain where until now information is
rarely sent to the Council and/or the Commission, many EU measures are still to be transposed
by a majority of Member States, and when those data which are available are not
comparable (so that it took years before sharing comparable data on migratory
movements). Such lack of cooperation between the Member States and the EU
institutions is not specific to the AFSJ (as it is widely present also as
regards internal market legislation) but in the AFSJ the outcome of these
shortcomings is a lower level of trust between the Member States and the risk
of problems when applying mutual recognition measures (be it in the asylum
domain or as regards judicial
cooperation in criminal matters).
The Council
Presidency rightly refers to Article 70 of the TFEU, which provides for the
adoption of measures concerning evaluation specific to the AFSJ. However, so
far this legal basis has been employed (after a strong confrontation with the
EP) only for the Schengen evaluation mechanism, so it remains to be seen if it
could become a reference also for the other AFSJ policies.
But after the
CJEU N.S. ruling (C-411/10) a new generalised form of mutual evaluation has
been created (which is practically ignored by the Council document) according
to which any national authority has the duty to verify “if there are
substantial grounds for believing that there are systemic flaws” of fundamental
rights policies in the other
member states.
This concept has now
been mirrored in the recent Directive on the European Investigation Order where the legislator acknowledges that “The creation of an area of freedom, security and
justice within the Union is based on mutual confidence and a presumption of
compliance by other Member States with Union law and, in particular, with
fundamental rights. However, that
presumption is rebuttable.(emphasis
added) …Consequently, if there are substantial grounds for believing that the execution
of an investigative measure indicated in the EIO would result in a breach of a
fundamental right of the person concerned and that the executing State would
disregard its obligations concerning the protection of fundamental rights
recognised in the Charter, the execution of the EIO should be refused.”
Conclusions
It has still to be
seen if and how the Council Presidency document will be taken into account by Coreper
this week and by the Justice and Home Affairs Council early in June. So far it
is just a hanger to hang hopefully new progressive ideas on.
However the risk
exists that even after the inexplicable acceleration given by the European
Council to adopt the AFSJ guidelines in the absence of the Parliament and of
the Commission the EU citizens will discover that the emperor is… naked.
Barnard & Peers: chapter 3, chapter 25, chapter 26
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