The next Justice and Home Affairs Programme: everything changed, so nothing can change?

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 1^st 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