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The Area of Freedom, Security and Justice

Summary

  • The Area of Freedom, Security and Justice is given by the article 3/2 of the European Union Agreement: “The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.”
  • The Area of Freedom, Security and Justice is also paid attention to in the Title V of the Treaty on the Functioning of the European Union (TFEU).
  • In order to build the area of freedom, security and justice, the Stockholm programme setting the aims and priorities of the European Union (EU) was adopted in 2009.
  • The topics contained in the Stockholm programme include harmonisation in the area of criminal and civil rights with the cross border elements, fight against organised crime and terrorism, visa policy and security of the external border, finishing of the asylum system and common immigration policy.
  • The programme was a five-year programme and it will expire by the end of the year 2014; at its meeting in June the European Council, based on the article 68 of the TFEU, will adopt strategic changes to the legislative and operative planning replacing the Stockholm programme for the next term.
  • At its meeting, the European Council will have to evaluate the existing development in the area and define the key topics for the future.

The emphasis should be on the implementation and advancement of the existing regulations rather than on creation of new legislation.

1. Background

When the Lisbon Treaty came into force in 2009 the pillar structure of the EU, which was created in 1993 after the adoption of the Maastricht Treaty, was put to an end. The third pillar, originally called the Area of Justice and Home Affairs (JHA), was in 1999 – as a part of the Amsterdam Treaty – reduced and renamed to the Police and Judicial Cooperation in Criminal Matters. Policies concerning asylum, immigration and judicial cooperation in civil matters were transferred to the first pillar (European Community) where they were subjected to communitarian regime. As a part of the third pillar the supranational institutions did not have an authority to take decisions and the policies were decided about by the member states within intergovernmental cooperation. In 2009 the third pillar ceased to exist and the areas it contained (together with some areas from the first pillar) were newly adjusted in the Title V of the Treaty on the Functioning of the EU called the Area of Freedom, Security and Justice (AFSJ). The Lisbon Treaty authorised the supranational institutions to confer and make decisions in this area.

The article 67 (TFEU) is the principal one for the area: it states that “The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.” Its aim is to ensure free movement of persons and to provide strong protection to the Union’s citizens. The range of policies falling into the AFSJ is wide – it includes immigration and asylum policies, the area of police and judicial cooperation, protection of the external border and fight against the organised cross border criminal activity. Other articles important for the AFSJ are: the article 16 of the TFEU (which concerns personal data protection) and the articles 18 – 25 (concerning the ban on discrimination and the issues on the European citizenship).

The Area of Freedom, Security and Justice is a sensitive issue for the member states; its exceptionality among the other EU policies is reflected on the adjustment of the ways in which the member states can raise objections against legislative proposals in this particular area. While with other policies one third of the national parliaments is enough to start the instigation (according to the key in the Protocol No. 2), in the case of the AFSJ this requirement was lowered to one quarter of the national parliaments. Thus the national parliaments were enabled easier control over the adopted legislation.

In the case of decision-making of the European Court of Justice the AFSJ was adjusted in a rather different way. Until December 2014 there is an exception from the AFSJ for the decision-making in the preliminary issues, By the end of December 2014, however, the transitory phase will have finished, the AFSJ will have gone under the standard regime and the judicial controls executed by the European Court of Justice will not differ from the control of other European Union policies.

2.  History

The first steps in the area of the existing Area of Freedom, Security and Justice were made already in the 1970s but it was not until the establishing of the Schengen area in the early 1990s (which enabled significant development in the area of justice and home affairs) that deeper cooperation started to occur. The Maastricht Treaty (in practice since 1993) established the area of cooperation and home affairs as the third pillar of the so-called pillar structure of the EU. It was an intergovernmental element with the union organs significantly limited in their powers. The Amsterdam Treaty (1999) transferred parts of the late third pillar to the first – communitarian – pillar. Contemporaneously the idea of the Area of Freedom, Security and Justice was first presented at the meeting of the European Council at Tampere. Ten years later, in 2009, the pillar structure was put to an end by the Lisbon Treaty and the formerly divided area was reunited under the umbrella term: the Area of Freedom, Security and Justice.

In connection to individual agreements the representatives of member states’ governments adopted programmes which aimed to set concrete targets in the aforementioned areas. These were namely the Finnish Tampere programme (adopted in 1999) and the following Haag programme (2004) which set targets for the 2005 – 2010 term. In connection to the Lisbon Treaty the Stockholm Programme was adopted: it dealt with the principles of the term 2010 – 2014. The Commission adopted the Action plan for the given area which concerned the execution of the programme. The validity of these two documents will expire this December and in June 2014, at the meeting of the European Council, the Prime Ministers and heads of the member states will negotiate a new document which will establish the goals of the EU for the upcoming term.

3. Current state

As mentioned above, by the end of this year the term for which the Stockholm programme was adopted will have expired. After December 2014 there will be no document which would establish the aims of the Area of Freedom, Security and Justice. Currently, there is a debate on a document which the European Council should adopt at its meeting in July and which should follow the Stockholm programme. The most frequent questions in the discussion concern not only the contents but also the form of the document. Contrastingly to the previous years the European Council will not adopt a detailed programme but rather “strategic guidelines for the legislative and operational planning” (article 68 of the TFEU).

The Stockholm programme is a rather extensive document which elaborates in detail on the vision of the European politicians of the Area of Freedom, Security and Justice. It does not contain only the aims but it also establishes the legislative programme and the specific steps within the individual parts of this area. The basic components of the Area of Freedom, Security and Justice, and thus of the Stockholm programme as well, are: common visa, asylum and immigration policy, judicial cooperation in the civil, legislative, commercial and family matters, and police and judicial cooperation in criminal matters.

According to the report of the Commission, with the help of over 50 initiatives, 95 % of the Stockholm programme has been fulfilled since 2010. Numerous legislative acts which fulfil majority of the set goals have been passed. The productive legislative activity, based on the Stockholm programme, set solid foundation to the Area of Freedom, Security and Justice.

Nevertheless, there are several flaws in the Stockholm programme which can be identified in retrospection: they are predominantly connected to the challenges connected to the events of the recent years. They are mainly the issues of cyber criminality, stability in the North African region and stability in the Middle East connected to the events of the Arab spring. It is the very wave of revolutions in the Arab countries which showed that the Union is lacking a sufficient mechanism which would, within the Area of Freedom, Security and Justice, be able to successfully react to unexpected events (such as for instance concerning the issue of illegal immigration).

Regarding the sensitive nature of the Area of Freedom, Security and Justice some of the member states decided not to take their full part on the decisions made in this area. The United Kingdom, Ireland and Denmark have negotiated exceptions and so they abide by a different legal regime. They may be absent from the legislative processes and the decisions adopted would not affect them. There are two kinds of exceptions – the so-called opt-in and opt-out clauses. In the case of opt-in the states have a possibility to adopt individual decisions which are being negotiated or have earlier been adopted. In contrast, not adopting an adopted adjustment is called opt-out.

4.  What will happen after 2014?

Despite the new document will follow the existing Stockholm programme chronologically, it is highly probable that there will be numerous differences both in form and content. The Treaty on the Functioning of the European Union describes “strategic guidelines”, not a programme, and so the new document will be similar to the older document from Tampere (1999) rather than the newer programmes (Haag and Stockholm).

a. Form

The TFEU lacks the time schedule for the newly adopted strategic guidelines. Therefore, there are several options. With regards to the previous five-year programmes it is possible that the new programme will be set similarly for five years as well. For practical reasons, a seven-year programme could also be possibly taken into consideration since it would reflect the length of the perennial EU budget frame. According to the primary law the minimal length of the financial frame is five years (article 312 TFEU); the last perennial financial frame was adopted for the 2007 – 2013 term and the existing one is efficient from 2014 to 2020. To unite the term of the programme with the budget term could help to simplify administration and planning of certain legislative steps.

A question remains: what influence the non-governmental organs, such as non-profit organisations or the public society, would have on the decision-making? The European Union educes effort on including these actors to the decision-making process: for instance the DG for Justice organised a professional forum Assises de la Justice in autumn 2013. It focused on the future of the European policies on justice. Nevertheless, the issue of direct influence of these organisations and professional public remains obscure.

b. Content

When the heads of the member states agree on the form which the strategic changes should have, the content of the document will remain a question. They will have to agree on both the topics and general pointing. It will be for the first time that the adoption of a major document in the Area of Freedom, Security and Justice will not be connected to any change of the primary law: thus the European Council will be able to react to the existing development and outline the future pointing without any reflection of the changes in the Treaties.

With regard to the fact that the European Council will react to the established programme and the functioning European policies, bigger emphasis should be placed on an effective implementation of the rules and pushing ahead of the legal regulations. It is unnecessary to create a wholly new programme, the future one should be more based on the present state. Various actors in the area of the European policies (from the Commission to the professional public) have agreed on the importance of such procedure. It is vital to distinguish between the implementation of the existing rules and the legislative mode and adopting new regulations.

Among the new topics which have been an important part of the Area of Freedom, Security and Justice for the past two years there are the challenges connected to the financial crisis, external policy and stability in the region and personal data protection. The saving regulations of the member states which react to the financial crisis will have a long-term impact on the states’ ability to implement the EU requirements. Even though this fact cannot cause lowering of standards, it is necessary to adopt it and adapt to it accordingly.

Cybercrimes are becoming an urgent problem to which the EU has to find a solution. Taking into account the specific nature of cyber criminality, a specific attitude which includes intergovernmental cooperation and partnerships between public and private sector is required. Even here the implementation of the existing strategy and introduction of the new rules are key. The new strategic guidelines should link to the existing successes (such as the foundation of the European Cybercrime Centre) and should deepen the fight against cybercrime both on the level of the individual member states and within the cooperation among them. The European Council must react to the situation in the region. Greater integration between the internal and external policies of the EU is needed to secure stability, security and justice in the third countries, mainly the countries neighbouring the EU and the countries of the Middle East and Northern Africa. The issue of the cooperation between civil and military sector is directly linked to it: the EU should strengthen it if it wants to be a guarantee of the security in the region.

Key points

In the area of domestic affairs the Commission identified the following problems: increasing international mobility, demographic changes, deficiencies at the job market, instability on the EU neighbours, vigorous development of the modern technologies and the EU economic interests. The Commission sees the openness of the Union as the main future challenge: concerning mobility, migration and security characterised by the fight against cyber criminality, human trafficking, cross-border organised crime and terrorism. In the area of justice the Commission speaks about the problematic of trust in the area of jurisprudence, mobility of the EU citizens and economic growth.

The key topics to which the European Council should pay attention are closely linked to the current economic and political situation. In the case of immigration policy it should be the support of qualified workers, ensuring the dialogue between the member states, companies and trade unions concerning the demand for migrating workers and facilitating of qualification and specialisation recognition. The common asylum policy should keep deepening; the European Union will both support people in danger and prevent illegal immigration through punishment for human trafficking.

In the cease of security the main topic is the aforementioned cyber security which has become an urgent problem. The European Council will have to adopt an attitude to the problematic of data collection and misuse. The issue of terrorism is not pushed aside and remains important. The Council will also focus on cross-border organised crime and on securing of effective execution of the EU policies via the criminal law.