Area Of Freedom, Security And Justice Research Articles

The European Parliament’s Oversight of the Agencies of the Area of Freedom, Security and Justice. Where are we Now and Where are we Heading

Despite becoming a legislative actor comparable to the Council after the entry into force of the Lisbon Treaty, the European Parliament (EP) still lacks the power to effectively scrutinize the implementation of the European Union (EU) law and policies by the agencies of the Area of Freedom, Security and Justice (AFSJ). The case of Frontex has demonstrated the extent to which the successful protection of human rights is at stake when it comes to the activities at the external borders to halt irregular migration flows and other illegal cross-border activities. Abuses in this regard have been highlighted by several International Organizations and non-Governmental Organizations, forcing the EU Institutions to act accordingly. This paper analyzes the current state of affairs of the EP’s powers to scrutiny AFSJ agencies after the progressive enhancement of their mandates in the last decade, and suggests several recommendations to enhance the accountability of these agencies to fully respect the principles of the rule of Law and the values on which the EU is based.
 Received: 31 July 2022Acepted: 28 September 2022

Approximation of criminal sanctions in the European Union: A wild goose chase?

The era when criminal law was solely a matter of national legislation is long gone. In the European Union, the approximation of substantive criminal norms and procedural rights has not escaped the attention of the European legislator. Inevitably, the move towards supranational criminal law has affected the field of sentencing and criminal sanctions. This paper seeks to discuss the changes that the development of EU criminal law brings on sentencing. The focus lies on the approximation of criminal sanctions within the EU, in an attempt to understand the scope and the added value of the EU’s approach in the field. First, the legal basis of article 83 TFEU is presented and analyzed, in order to define the limits of the Union’s competence in the field of sentencing. Subsequently, the approach of the European legislator when adopting minimum rules on the approximation of criminal sanctions is unravelled, and the relationship between functional approximation and mutual recognition is discussed. Finally, this paper concludes with some critical reflections upon the approximation of criminal sanctions in the EU, with an eye towards the future of Europe’s Area of Freedom, Security and Justice (AFSJ).

Spot the Difference: Differentiated Co‐operation and Differentiated Integration in the European Union

AbstractThe concept of differentiated integration (DI) has spawned a wide‐ranging research agenda that has significantly advanced scholarly understanding of the complex and often uneven process of European integration. Discussions about DI have suffered, however, from conceptual stretching as DI has been applied to an increasing number of EU policy areas, including those that function on the basis of intergovernmental co‐operation rather than supranational integration. To address this problem, we propose to distinguish between DI and differentiated co‐operation (DC) as two subtypes of differentiation, depending on whether such a phenomenon occurs in a policy area that operates along the lines of integration or co‐operation respectively. We illustrate the usefulness of this conceptualization by applying it to the cases of the Common Security and Defence Policy (CSDP) and the Area of Freedom, Security and Justice (AFSJ). We conclude by highlighting avenues for further research that the distinction between DI and DC suggests.

Innere Sicherheit im System der Europäischen Union: Politiken, Kompetenzen und Herausforderungen für rechtsstaatliche Standards

This article analyses the European Union’s (EU) internal security policy as a core element of the Area of Freedom, Security and Justice (AFSJ) established by the Treaty of Amsterdam in the 1990s. In official EU internal security documents, the AFSJ has been gradually replaced by the label Security Union since the mid-2010s. Even if internal security became a fully integrated part of the new EU when the Treaty of Lisbon entered into force in 2009, the member states’ governments and intergovernmental patterns still play an important role in this policy area, as security agencies and justice institutions still differ significantly between the member states. Despite the increased importance of the EU Charter of Fundamental Rights, the member states’ strong role and the trend towards a Security Union are challenges for the establishment of rule-of-law style internal security structures in the EU.

Punching Below Its Weight: The Role of the European Parliament in Politicised Consultation Procedures

With Lisbon, the European Parliament formally acquired an equal standing to that of the Council of the EU in the making of policies in the AFSJ (area of freedom, security and justice). However, the growing political salience of policy issues at stake and bottom-up politicisation in the AFSJ has had the unintended effect of undermining the European Parliament’s internal unity even under consultation procedures. To show how this played out in practice during Europe’s migration and refugee crisis, this article analyses the European Parliament’s role, preferences, and bargaining position in the making of two Refugee Relocation Decisions (Council Decisions 2015/1523 and 2015/1601) under consultation procedure. To do so, this article exploits Putnam’s two-level framework (level I and II politics throughout the policy-making process) to explore early agenda-setting attempts and groups’ positions on issues of refugee relocation and burden-sharing, as they were formally stated in their position papers and expressed at the LIBE Committee and at plenary. This article shows that the high domestic salience and politicization of the issues at stake left MEPs torn between competing principals at home and within their European Parliament political groups and had the effect of weakening overall unity on the issue of refugee relocation.

Mutual (Dis-)trust in the Area of Freedom, Security and Justice?

Mutual trust constitutes the foundation of the principle of mutual recognition, which in turn embodies a cornerstone of the Area of Freedom, Security and Justice (AFSJ). This contribution explores the development of the relationship between trust and distrust in two mutual recognition regimes of the AFSJ. It bases on the premise that trust and distrust are inextricably linked, and that their relationship should not be perceived as one of mutual exclusivity or contradiction. The analysis addresses exceptions to mutual recognition, which are often perceived as manifestations of distrust, and examines their potential impact on mutual trust. It is submitted that exceptions to mutual recognition are necessary requirements for building and maintaining trust in the AFSJ and that they constitute an adaptation of the principle of mutual recognition to the particularities of the AFSJ. Next to the horizontal dimension of trust (i.e., trust among Member States) the analysis adds a new perspective by highlighting the importance of the vertical dimension of trust.

The Decisional Value of Information in European Semi-automated Decision-making

This article asserts that the automated processing of information, such as via large-scale information systems in the Area of Freedom, Security and Justice (AFSJ), alters the 'value' of information from a means of assistance to a key decisional asset. Information in its different forms, whether paper-based or digital, has always been fundamental to decision-making conduct. Concretely, the premise holds that decisions shall be based on correct, full, and adequate knowledge and reasoning. Technological innovation has, however, magnified information capacities and significance. The article in that respect maintains that the 'decisional value' of automatically-processed information consequently also alters the nature of the respective decision-making – from a conventional type where the agent exercises discretion to a 'semi-automated' conduct in which automation inhibits the agent's decision-making capacity. The recognition of such transformation is necessary for the law to keep up with the technological progress and safeguard rights of individuals who are subjects of such semi-automated decisions.

From Legal to Political Reasoning: National Parliaments' Use of Reasoned Opinions in the Area of Freedom, Security and Justice*

AbstractThe Lisbon Treaty emphasized the importance of subsidiarity control in relation to the Area of Freedom, Security and Justice (AFSJ). The article demonstrates that the types of reasoning national parliaments use to raise subsidiarity objections in the AFSJ depend less on the institutional strength of national parliaments in EU affairs and more on the institutional evolution and material scope of EU proposals. Relying on the AFSJ case, the article shows that national parliaments use a narrow legal interpretation of subsidiarity when the EU legislation threatens Member States' legal traditions and State powers. However, concerns about the respect of national legal diversity are replaced by a more political approach to subsidiarity control when politically sensitive and contentious issues are at stake.

Designing the renewed European defence policy through permanent structured cooperation. Why?

ABSTRACT As the COVID-19 crisis has evidenced, Europe is currently facing non-traditional, hybrid threats and challenges to its public order and security that question traditional, stand-alone responses. Conscious of this, during the last decade the European Union (EU) has developed several tools to deal with those security threats and challenges jointly by making full use of the Lisbon Treaty provisions. Indeed, in addition to the strengthening of the policies and instruments of the Area of Freedom, Security and Justice (AFSJ), the EU has particularly boosted European defence cooperation within the framework of the Common Foreign and Security Policy (CFSP) since 2016 through initiatives such as the Permanent Structured Cooperation (PeSCo). The aim of these defence initiatives is twofold: on the one hand, to complement AFSJ instruments to protect the EU homeland and its citizens; on the other, to enhance its response to international crises and contribute to international peace and security. A matter of future concern will be, nevertheless, to sustain the political momentum after the COVID-19 socioeconomic crisis and to show the positive externalities of enhancing defence cooperation in fighting non-traditional threats and challenges, notwithstanding the many difficulties that it will encounter in its uncertain path.

The Impact on National Sovereignty of Mutual Recognition in the AFSJ. Case-Study of the European Arrest Warrant

AbstractNational sovereignty has been the key consideration for basing judicial cooperation in the European Union on mutual recognition. More than one decade after the creation of the Area of Freedom Security and Justice (AFSJ), this contribution assesses whether mutual recognition-based EU legislation in civil and criminal law indeed respects national sovereignty. To this end, it studies the Framework decision on the European Arrest Warrant (EAW), the EU’s flagship instrument in the AFSJ. We distinguish two elements of national sovereignty: (a) the protection of the State and its basic structures (its statehood); (b) the State’s values, principles and fundamental rights (its statehood principles), and assess the EAW from a dynamic perspective: from its initial inception, in which mutual trust primarily implied little interferences with the laws and practices of issuing states, to the current state of affairs which is marked by what could be called a ‘mutual trust supported by harmonization’- approach. Especially in the judge-driven harmonization of the EAW and the dialogue between judicial authorities we witness important (and oftentimes overlooked) elements that impact national sovereignty. At the end, the findings of the article are put in the context of the current rule of law crisis in the EU.

The 20 years anniversary of the Tampere programme: Securitization, intergovernmentalism and informalization

The end of 2019 coincided with two anniversaries with profound implications for EU Justice and Home Affairs (JHA) cooperation. First, it has been 20 years since the adoption of the Tampere Programme under the Finnish Presidency of the EU (October 1999). Following the entry into force of the Amsterdam Treaty, the European Council provided for the first time a multi-annual EU policy agenda for the progressive creation of an Area of Freedom, Security and Justice (AFSJ). Second, it has been 10 years since the entry into force of the Lisbon Treaty (December 2009), and the EU Charter of Fundamental rights becoming legally binding. In light of this background, this Editorial critically examines some of the latest key developments in the EU AFSJ law and policy.

Europol’s International Exchanges of Data and Interoperability of AFSJ Databases

Data sharing and interoperability aspects of Europol’s information systems outside the EU are particularly problematic because of the difficulty of ensuring that adequate legal safeguards are complied with in partner third countries and international organizations. At the same time, the way in which the ongoing interoperability initiatives regarding the Area of Freedom, Security and Justice (AFSJ) databases may influence Europol’s international cooperation raises arguably a set of new legal and practical questions that require urgent consideration. This article examines these issues by connecting the Europol-specific legal framework and international practice to the recently adopted AFSJ interoperability regulations as well as to the EU broader data protection framework. It looks more specifically at the balance between data protection/fundamental rights and operational effectiveness throughout Europol’s legal framework and practice of international cooperation and examines the implications of interoperability of AFSJ databases on this. On the one hand, interoperability of AFSJ databases is likely to boost Europol as an information hub through extended personal data collection and data processing possibilities, thereby making the Agency more attractive to international partners. On the other hand, the possibility to transfer such data outside the EU requires strong and effective safeguards from a data protection perspective. The article tentatively concludes that Europol’s current legal and practical framework for international cooperation seems to tilt the balance on the side of operational effectiveness to the detriment of data protection and fundamental rights, and that the new possibilities offered by the interoperability of AFSJ databases will further enhance this trend. Europol, international cooperation, interoperability, AFSJ databases, data protection, fundamental rights, effective police cooperation

Interoperable Databases: New Cooperation Dynamics in the EU AFSJ?

At present EU institutions and agencies as well as national legislators have ambitious agendas on law enforcement authorities’ access to interoperable information systems, which have become a defining feature of the Area of Freedom, Security and Justice (AFSJ). They are the most advanced form of information exchange, conferring direct information access to competent authorities. Interoperable information systems are intended for the exchange of raw material for investigation purposes, which at a later stage could become evidence at trial. Interoperable information systems challenge existing cooperation dynamics and redefine the role of the actors involved. It is questionable whether mutual recognition and approximation, which have been considered the cornerstone of judicial cooperation in both civil and criminal matters for many years, can describe alone integration dynamics in law enforcement cooperation, particularly with reference to information sharing. This article appraises whether, and to what extent, law enforcement access to and use of interoperable information systems constitute new modes of law enforcement cooperation in the EU AFSJ. It then assesses what would be the implications of such a paradigm shift on information management. After a short overview of the main features of interoperability, it addresses whether and how the establishment and functioning of interoperable information systems actually or potentially redefines the existing distribution of tasks between the EU and Member States and among competent authorities of different kinds. European Union, Area of Freedom Security and Justice, law enforcement, information management, interoperability, approximation, mutual recognition, principle of availability, platform integration

Interoperability Between EU Policing and Migration Databases: Risks for Privacy

The interoperability initiative passed in May 2019 as Regulations (EU) 2019/817 and 818 seeks new strategies for identifying dangerous individuals who use false or multiple identities. The EU’s databases in the Area of Freedom Security and Justice (AFSJ) for policing and migration purposes will be interconnected. This constitutes a paradigm shift for purpose limitation as a core element of data protection. This article identifies regulatory patterns and shortcomings in the technical and legal data protection arrangements of the interoperability regulations. The legal framework for data protection in the EU has developed considerably with the General Data Protection Regulation (GDPR) 2016/679 and with Directive 2016/680 for policing and criminal justice. The European Data Protection Board, a multilevel accountability forum in which European and national data protection authorities cooperate has been established. From a trans-disciplinary legal, public administration, and public policy perspective, this article analyses the regulatory patterns and institutional settings established for the upcoming interoperability of databases for policing and migration. EU migration and policing databases, police information sharing, interoperability, data protection, privacy, accountability, eu-LISA, Europol, Schengen Information System, Visa Information System, EU external borders

The Principle of Mutual Trust between Member States in the Area of Freedom, Security and Justice

This study discusses, from various angles, the principle of mutual trust between Member States in the Area of Freedom, Security and Justice (AFSJ). As a starting point it refers to three emblematic cases decided by the European Court of Justice: “Aguirre Zarraga”, a child abduction case, “Jawo”, a case involving a transfer of an asylum applicant under the Dublin III regulation, and “LM”, a case concerning a European Arrest Warrant from Poland, called into question by courts in Ireland in the light of problems of judicial independence in Poland. The first section deals with the foundations and legal effects of the principle of mutual trust. Based on a fundamental distinction to be made between the AFSJ and more traditional EU law settings, it argues that the principle of mutual trust is not a freestanding legal requirement but rather a functional construction principle for the AFSJ. The second section explores several possible corollaries of mutual trust - independent authorities, common EU standards on criminal procedure and on penitentiary systems, and EU membership as such - and finds that all these are not quite as straightforward corollaries as they may appear at first sight. The decisive meta-corollary seems is respect for the rule of law. The third section looks at how EU law defines the limits to mutual trust and at the respective roles of the case law and the EU legislator in this context. It finds growing convergence between the two European Court in defining limits and proposes a heuristic distinction between retrospective and prospective settings as a guide for further interpretation. High emphasis is placed on the responsibility of the EU legislator in defining appropriate, tailor-made limits to mutual trust. Looking at the legislative reality so far, marked by various inconsistencies, there is ample room for improvement, but this will remain an arduous task as long as the notorious rule of law problems persist in some Member States. The last section is devoted to the perspective of the EU’s accession to the ECHR, in the aftermath of Opinion 2/13 in which the Court had relied inter alia on the principle of mutual trust to find the draft accession agreement as incompatible with EU primary law. The article dismisses ideas of a “disconnection clause” or of codifying the “Bosphorus presumption” to overcome the mutual trust objection of Opinion 2/13, and instead recommends a combination of a substantive clause on mutual trust and of procedural means to deal appropriately with cases on mutual trust arising in the Strasbourg Court. The final proposition is that the EU’s accession to the ECHR may be seen as a catalyst for mutual trust between EU Member States, promoting the smooth operation of legislative schemes based upon that principle, rather than as an obstacle to it.

Vulnerability as a normative argument for accommodating “justice” within the AFSJ

AbstractVulnerability is a concept that stems from ethics and legal theory. It has progressively gained momentum in international human rights law, in particular in the European contextof the European Court of Human Rights adjudications. Also, the European Union is sensitive to it.By the introduction of competences in the Area of Freedom, Security and Justice (AFSJ) we are witnessing a progressive “vulnerabilisation” of EU law. This article intends in the first place to outline such a problematic notion and then to highlight the normative effects of vulnerability. In particular, this article will put forward the argument that such notion could serve to revamp the profile of “justice” of the AFSJ, which has been neglected so far, calling for the development of a more sophisticated ethics of State duties.

Storming the Bastille: Detention conditions, the right to liberty and the case for approximation in EU law

In recent years, detention conditions in the EU have come in the spotlight as an issue of extreme relevance. Concerns about appalling standards of living in places of deprivation of liberty have emerged transversally in the area of freedom, security and justice (AFSJ). The risk that poor detention conditions result in inhumane or degrading treatment – prohibited by Article 4 of the EU Charter of Fundamental Rights (CFREU) – has served to limit the operation of secondary EU law. This has occurred in the framework of forced movement of persons as between Member States, and has mainly called into question the level of protection ensured in the State where the person will be transferred. This may hold true for both asylum law and mutual recognition in criminal matters. While the broader debate on detention conditions has hitherto focused on Article 4, the impact on the right to liberty under Article 6 CFREU has been underexplored. This paper submits that detention conditions must be studied from the perspective of the right to liberty, and makes the case for approximation of detention conditions at EU law level.

Commercial Data Transfers and Liaison Officers: What Data Protection Rules Apply in the Fight Against Impunity When Third Countries are Involved?

This contribution addresses the question of whether and under what circumstances data protection should prevail over the fight against impunity. It focuses on data cooperation between the European Union and the United States of America (US) in the context of crime prevention and law enforcement. It examines the limited control mechanisms that are in place to ensure data protection after data has been transferred or otherwise shared in the highly relevant and controversial context of commercial transfers of personal data and in the academically rather neglected context of liaison officers seconded from the US to EU agencies within the Area of Freedom Security and Justice (AFSJ). The objective is to identify (1) limits imposed by data protection requirements on data sharing as a means of fighting impunity, (2) responsibilities of EU actors for data that is collected and processed within the EU’s jurisdiction, be it public or private actors, and (3) limits of the EU’s control over data flows in the 21st century.

Rola Frontex w zarządzaniu przestrzenią wolności, bezpieczeństwa i sprawiedliwości UE

Celem artykułu jest horyzontalna i funkcjonalna analiza umiejscowienia agencji Frontex w systemie instytucjonalnym UE oraz wskazanie jej znaczenia w tworzącym się ponadnarodowym systemie zabezpieczania granic. Artykuł jest próbą odpowiedzi na pytanie, czy Frontex jest nowym rodzajem instrumentu zarządzania przestrzenią wolności, bezpieczeństwa i sprawiedliwości UE? W pracy wykorzystano metody jakościowe, a za źródło informacji posłużyła analiza treści dokumentów i literatury przedmiotu. W artykule znajdują się informacje o roli i specyfice agencji ponadnarodowych, znaczeniu Frontex i usytuowania w strukturze instytucjonalnej UE, jak również o utworzonych instrumentach realizacji celów agencji tj. Eurosur i IBM. Dyskusji poddano także aspekt przenikania się sfery krajowej i ponadnarodowej w omawianym aspekcie PWBiS. Artykuł dowodzi, że pozytywnie należy zweryfikować założenie, że to tworzone na poziomie ponadnarodowym narzędzia służące realizacji celów Frontex sprzyjają procesowi uwspólnotowienia systemu zarządzania granicami zewnętrznymi UE. Wnioski wskazują także, że pomimo rozbudowywanych kompetencji wspierania zarządzania granicami na poziomie ponadnarodowym, nadal jest to kompetencja państw członkowskich, dla których nadzór granic lądowych i morskich jest sprawą priorytetową bezpieczeństwa.

Mutual Trust and the Dark Horse of Civil Justice

AbstractHow to understand and deal with the principle of mutual trust, its emanations, interpretations, and imperatives has in recent years become one of the central and most critical issues in the development of the Area of Freedom Security and Justice (AFSJ). Civil justice may be the dark horse with respect to mutual trust among the policy areas of the AFSJ in the sense that it may show useful but hitherto hidden possibilities and have an un-tipped winning strategy. In particular, the balancing safeguards in legislation, the importance of which have been confirmed in case law, are important to ensure the fundamental right to a fair trial. However, that does not mean that mutual trust does not pose challenges in the context of civil justice. Hence, it remains important to focus on how—normatively, and by which regulatory means—to support mutual trust as well as how to balance, and perhaps limit, its implementation in order to enhance its legitimacy. In addition, the recent pressures towards harmonisation need to be carefully analysed.