Justice And Home Affairs Research Articles

A New Research Agenda: How European Institutions Influence Law-Making in Justice and Home Affairs

The article presents a dataset on the legislative procedure in European Justice and Home Affairs (JHA) and a new method of data processeing. The dataset contains information on 529 procedures proposed between January 1998 and December 2017. For each of the legislative proposals, the dataset identifies the main elements of the legislative procedure (e.g., dates, types of procedure, directory codes and subcodes, actors, voting results, amendments, legal basis, etc.) and the changes introduced at each step of the legislative process from the text proposed by the European Commission to the final version published in the <em>Official Journal of the European Union</em>. This information has been gathered using text mining techniques. The dataset is relevant for a broad range of research questions regarding the EU decision-making process in JHA related to the balance of powers between European institutional actors and their capacity to influence the legislative outputs.

‘They Need Us More than We Need Them’: British Exceptionalism, Brexit, and Justice and Home Affairs

This article analyses the EU-UK Future Relationship negotiations on Justice and Home Affairs (JHA) through the lenses of ‘exceptionalism’. This concept refers to a given state’s self-understanding as being not only fundamentally different from other states, but also morally superior. In its exemptionalist variant, exceptionalism also calls attention to the belief that one is entitled to exemptions from ordinary rules. This article argues that, whilst exemptionalist exceptionalism can be said to characterize the UK’s position in relation to European integration in general, it has been particularly pronounced in the JHA policy area. This is shown through an analysis of the various exemptions from ordinary rules and arrangements obtained by the UK over the years. The existence of those also demonstrates a broad acceptance by the rest of the EU of this selfperception of the UK as being an exceptional state. Furthermore, this article shows that, perhaps unsurprisingly, the UK government has retained this stance in the Future Relationship negotiations with the EU. It has set its expectations of negotiating agreements with the EU that would set it apart from all the other partners of the EU. It has attempted to justify such an exceptional treatment on the basis of the remarkable quality of the contribution that it has been able to make to EU internal security as encapsulated in the idea that ‘the EU needs us more than we need them’. However, recent developments suggest that the EU is no longer as favourably disposed to grant exceptional treatment to the UK in the field of JHA now as it was when the UK was a Member State. United Kingdom, exceptionalism, Justice and Home Affairs, Internal security, Brexit

EU Memory Politics and Europe’s Forgotten Colonial Past

Since the 1990s, the European Union has started to enter a policy area that until then had been one of the exclusive prerogatives of the nation state: the public dealing with Europe’s bloody past. Within a few years the European Parliament passed several resolutions dealing particularly with the commemoration of human rights violations that took place on the territory of the EU while the European Commission made several funding instruments available aimed at using the realm of memory as a mechanism of public sphere formation. While European efforts for transnational historical remembrance have focused almost exclusively on the Holocaust and National Socialism as well as Stalinism, the EU remains curiously quiet about the memories of imperialism and colonialism. This essay analyzes the conflictual memory constellations at the European level with the aim of explaining why European memory politics are characterized by a sustained focus on specific time periods on the one hand and amnesia on the other. By closely analyzing protocols of the European Parliament (EP), the Justice and Home Affairs (JHA) Council and European Council meetings using frame analysis, the essay digs deep into the complex dynamics lying at the heart of memory contests within the EU and provides a differentiated view on the ways in which memory is continuously dislocated, via resistance, consensus-making and conflict.

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.

The interoperability controversy or how to fail successfully: lessons from Europe

This article aims to discuss the interoperability controversy in the EU that followed the 2015 Paris attacks. Supported by visual methods, it analyses the historical developments of the databases that aim at facilitating migration and crime control in the area of Justice and Home Affairs (JHA). In so doing, it seeks to trace the paradox on freedom, technology, and surveillance since the Schengen area was established in the '90s, whereby the discourse on the freedom of movement (both as the rights of citizens and migrants crossing borders) has been reframed by the security reasoning using technological solutions. It critiques the technical framework within which the interoperability plans have been framed.

The interoperability controversy or how to fail successfully: lessons from Europe

This article aims to discuss the interoperability controversy in the EU that followed the 2015 Paris attacks. Supported by visual methods, it analyses the historical developments of the databases that aim at facilitating migration and crime control in the area of Justice and Home Affairs (JHA). In so doing, it seeks to trace the paradox on freedom, technology, and surveillance since the Schengen area was established in the '90s, whereby the discourse on the freedom of movement (both as the rights of citizens and migrants crossing borders) has been reframed by the security reasoning using technological solutions. It critiques the technical framework within which the interoperability plans have been framed.

Russian and Western scholarly perspectives on EU–Russia relations in Justice and Home Affairs: how ‘indigenous’ is the Russian scholarship?

ABSTRACT The paper explores the state of academic dialogue between the Russian and Western scholarly communities studying the European Union (EU)–Russia relations in Justice and Home Affairs (JHA). By analyzing the citation patterns of the academic articles on the EU–Russia cooperation in this area, we arrive at the conclusion that the Russian scholarship mostly does not engage in a transnational academic dialogue with the Western counterparts. In other words, it has turned into a sealed ‘indigenous’ scholarly community. And what is more, it is also disintegrated within itself since the Russian scholars do not refer to the research produced by their compatriots either. To qualitatively substantiate our findings, in the last section of the paper, we review the universe of all articles written on the topic in Russian to distinguish five trends typical of the research published in Russian academic journals. We believe that these features are the result of the lack of engagement with the Western scholarship and simultaneously the cause which prevents the communication between the two scholarly communities. This, in turn, undermines the accumulation of the transnational multifaceted policy-relevant expertise essential for normalizing the relations between Brussels and Moscow in general and in JHA in particular.

Opposition or consensus in the Justice and Home Affairs Council? The how and why of increasing member state contestation over EU policy

ABSTRACTThe article fills a research gap on voting behaviour in the Justice and Home Affairs (JHA) Council by presenting an analysis of 12 years of voting records (2004 to 2016). Consensus, said to be the default option for EU decision-making, was also dominant in the JHA field. However, the research observes a tremendous increase in ‘no’ votes and abstentions during the post-Lisbon period. In explaining contestation, a qualitative analysis of interview data and voting statements identifies four dominant reasonings: contestation can be related to member states’ sovereignty concerns, imply a critique on the respective proposal’s expected functionality, mark a misfit with national rules and politics, or point to unwanted budgetary effects. The findings show that the JHA Council has become more publicly political and has come to be a venue for national expression of discontent over the details of an EU Area of Freedom Security and Justice.

Small steps towards a comprehensive approach after Lisbon

This article examines the changes brought about by the Lisbon Treaty (LT) in the overall institutional architecture of the European Union’s Common Foreign and Security Policy (CFSP), alongside their impact on the operation of the internal–external nexus in counterterrorism (CT) policies. It argues that the inclusion of CFSP actors in the making and implementation process of CT policies eased the legal, institutional and policy boundaries between the CFSP and the field of Justice and Home Affairs (JHA). This is despite the specific status granted to the CFSP in the Treaties, the former remaining subject to intergovernmental procedures and unanimity in decision-making, even after the strides towards the ‘communautarization’ of policies achieved by the LT, in Police and Judicial Cooperation in Criminal Matters in particular. Central to the analysis is the interplay and division of competences between ‘new’ CFSP actors endowed with a coherence mandate, such as the European External Action Service and the upgraded office of High Representative, and ‘old’, pre-Lisbon, CT actors, JHA structures and member states in particular. This article finds that the involvement of the CFSP and more particularly its defence component, that is, the Common Defence and Security Policy, to realize CT objectives ‘affected’ the very content of foreign and security policies and heralded a process of ‘judiciarization’ of CSDP missions deployed in third countries resulting from the integration of criminal justice and law components in their mandate. The article concludes that the ensuing blurring of frontiers between the realms of CSDP and JHA raises fundamental rights concerns as to the judicial remedies available to individuals suspected or accused of terrorist activities.

The dynamics of institutional behaviour in EU justice and home affairs: roles, representative claims, and varying policy positions

This article investigates the reasons behind varying institutional positions in the European Union’s (EU) area of justice and home affairs (JHA). It argues that such instances of institutional behaviour cannot be fully understood without examining how each institution seeks to legitimize its role in the EU political system. A novel theoretical framework on institutional behaviour is advanced, connecting individual policy positions and governance choices to (1) institutional roles developed within different types of organizational structure, and (2) the representative claims made by officials involved in decision-making. The framework draws on insights from organizational theory regarding institutional role expectations and a constructivist approach to representation borrowed from the work of Michael Saward. Using three cases of JHA legislation from the post-Lisbon period, it is shown that the framework can explain varying patterns of institutional behaviour by exploring lines of justification present in the institutional discourse.

With and without supranationalisation: the post-Lisbon roles of the European Council and the Council in justice and home affairs governance

‘Integration without supranationalisation’ is a recent phenomenon in European Union (EU) politics characterising new areas of policy activity which emerged on the EU agenda at Maastricht or beyond. Among fields like economic governance, foreign and security policy or social and employment coordination, the domain of justice and home affairs (JHA) appears to deviate from the pattern. While being a new area of EU activity which originally evolved on the basis of policy coordination arrangements, JHA has been gradually supranationalised in respect to decision-making procedures. However, given the political sensitivity of the issues it covers, JHA is far from functioning as a standard field of EU legislative decision-making, even after the Lisbon Treaty. By examining the active role of the European Council in setting the JHA agenda and the continuous centrality of the JHA Council in decision-making, this article demonstrates an important blend of supranationalisation and intergovernmentalisation in post-Lisbon JHA governance.

In it Together Yet Worlds Apart? EU–ASEAN Counter-Terrorism Cooperation After the Bali Bombings

The externalization of the EU’s Justice and Home Affairs (JHA) as part of the EU’s wider external relations has received increasing scholarly attention in the last years. An important and reoccurring theme within this field, which has occupied scholars and policy-makers alike, has been the EU’s counter-terrorism cooperation with third states. Initially viewed as a ‘paper tiger’ in international efforts to combat terrorism, recent studies have illustrated the increasing activism of the EU in international counter-terrorism cooperation. However, these studies have exclusively drawn on North American or ENP case studies. By analysing the EU’s counter-terrorism with ASEAN this article tries to extend the empirical basis of contemporary scholarship to the case study of EU–ASEAN cooperation. It thereby attempts to examine prospects and limits of the externalization of JHA with a special focus on counter-terrorism policies beyond the immediate EU neighbourhood.

Justice and Home Affairs as a New Dimension of the European Security Concept

This article aims at investigating the role of the external dimension of Justice and Home Affairs (JHA) policy in the process of defining a new security concept in the European Union. This new security concept is based on the indivisibility of the domestic and external aspect of security and it is designing the notion of 'holistic security'.

Law and Governance as Checks and Balances in Transatlantic Security: Rights, Redress, and Remedies in EU-US Passenger Name Records and the Terrorist Finance Tracking Program

Contemporary Transatlantic Relations have flourished since their formalization in 1995 in the New Transatlantic Agenda (NTA).1 Although not itself a binding legal Treaty, it prioritized ‘transatlantic security’ as one of its objectives.2 The ‘September 11’ 2001 (9/11) terrorist attacks in the US provided a major impetus for the EU and US to engage in transatlantic security cooperation. It resulted in much legal output, specifically a wave of transatlantic Agreements in the area of Justice and Home Affairs (JHA).3 Amongst these Agreements, two in particular were enacted so as to firstly, communicate air passenger data to the US and secondly, to legalize the exchange of personal data for the purpose of terrorist finance tracking: the EU-US Passenger Name Records (EU-US PNR) Agreements and EU-US Terrorist Financial Tracking Programme (EU-US TFTP) Agreements respectively. Over a decade after 9/11, transatlantic security cooperation is still planned in new areas, for example,...

The External Dimension of the EU’s Fight against Organized Crime: The Search for Coherence between Rhetoric and Practice

Since the external dimension of the European Union’s Justice and Home Affairs (JHA) began to be considered, a substantial amount of literature has been dedicated to discussing how the EU is cooperating with non-member states in order to counter problems such as terrorism, organized crime and illegal migration. According to the EU, the degree of security interconnectedness has become so relevant that threats can only be adequately controlled if there is effective concerted regional action. This reasoning has led the EU to develop a number of instruments, which have resulted in the exporting of certain elements of its JHA policies, either through negotiation or socialization. Although the literature has explored how this transfer has been applied to the field of terrorism and immigration, very little has been written on the externalisation of knowledge, practice and norms in the area of organized crime. This article proposes to bridge this gap by looking at EU practice in the development of the external dimension of organized crime policies, through the theoretical lens of the EU governance framework.

A Rhetorical Spillover? Exploring the Link between the European Union Common Security and Defence Policy (CSDP) and the External Dimension in EU Counterterrorism

The European Union (EU) counterterrorism policies have often been viewed through the prism of the EU's Area of Freedom, Security and Justice (AFSJ). Yet although macro-strategic decision-making is mainly located within the Council's Secretariat and Council of Justice and Home Affairs (JHA) Ministers, its external dimension reserves a role for the EU's Common Security and Defence Policy (CSDP).This rhetorical 'spill-over' of an internal security concern onto the CSDP is an interesting yet under-researched development. This is partially due to the fact that CSDP is far from being one of the most developed aspects of the European counterterror response.Yet this occurs in a context where the need for an active use of CSDP as a counterterrorist tool is emphasized in high-level political proclamations. This article will, therefore, aim to explain this disparity between EU discourse and reality. In addition, and building on recent debates in the field of terrorism studies, it provides a critical assessment of the conceptual foundations that link CSDP and Counter-terrorism (C-T) in the EU's discourse while evaluating the short- and medium-term potential for a more vigorous evolution of these policies.

The Ambiguities of Legalization and the EU’s Strategy of Extraterritorial Border Control

Despite an increased level of legalization of Justice and Home Affairs (JHA), academic literature has paid little attention to the role of law in this field. By drawing on two different strands of the literature, namely 'politics of law' and the 'autopoietic theory of law', this paper addresses the question on how legalization has affected the practice of extra-territorial border control by the EU and its Member States. Empirically, the article focuses on border control performed by Frontex' joint operations and by individual Member States. We observe that legalization affects the approach of 'remote control' in two different and competing ways. On the one hand, it enhances the autonomy of national and supranational executives, whereas on the other hand, legalization, in all its hybrid manifestations, stimulates a transnational legal discourse that policy-makers can neither oppress nor ignore.

The externalisation of migration control in the European Union: first steps towards the external dimension of the space of freedom, security and justice

The creation of an area of freedom, security and justice is one of the most rapidly developing aspects of European integration. It this paper, we take a look at the foreign policies involved in this process — aside from the internal development of the European Union, they concern a significant number of third countries, including Russia. In our view, the efforts to manage the flow of migrants and asylum seekers constitute a viable part of the external dimension within the AFSJ policies. Much of this article is based on the theoretical postulates introduced by the scholars of the Paris School, a school within the discipline of security studies that conceptualized the connection between migration, terrorism, asylum, crime and ethnic clashes, and its role as a major threat facing the European Union. Externalization of this complex threat (that is, externalization in relation to the European Union) is thus seen as one of the key prerequisites to advancement of migration management activities beyond the EU (i. e. externalization of migration management). In this article, we analyze the role the EU plays at the international scene and categorize the actions it took to manage the influx of migrants and asylum seekers from the 1980s until the time when supranational administrative bodies were granted mandates in the spheres of Justice and Home Affairs (JHA) of the EU Member States. We conclude that it was as early as the 1990-s that the EU launched the policy which later allowed to transfer part of its security concerns to third countries.

Depillarization and the Shaping of AFSJ

This article concerns the Treaty of Lisbon and its impact on the development of the Area of Freedom, Security and Justice (AFSJ). The background of the study is the discussion of the so-called pillar structure of the European Union, its dismantling and the features of the constitution of the EU Justice and Home Affairs (JHA), which have legitimized its characterization as a special field of integration within the architecture of the Union. The depillarization is considered to be one of the main achievements of the Treaty of Lisbon. For this reason, the focus of the article is on the special features of integration in the AFSJ. It is noted that it would indeed be meaningless to characterize AFSJ as a separate field of integration. However, there still are remains of the features which made it possible to consider JHA and the third pillar as different. Pillars continue their life in certain aspects. The AFSJ mode of integration is still based on a rationale of cooperation. Certain possibilities for the differentiation indicate the same attitude. Another important point in the same direction is the status of the individual: for this part the constitution seems not to be primarily rights-based.

The European Union and illegal migration in the southern Mediterranean: the trap of competing policy concepts

Starting with the European Security Strategy (ESS) in 2003 the European Union reiterated that security, stability, and good governance in its near neighbourhood are key foreign policy priorities. In consideration of new kinds of security threats, such as illegal migration and various forms of terrorist acts in the southern Mediterranean, we have been witnessing an on-going externalisation of security cooperation in the field of Justice and Home Affairs (JHA) with third countries in the region and beyond. In terms of illegal migration, FRONTEX acts as the main instrument in the management of Europe's border. This border control agency aims at curbing illegal migration in cooperation with third countries. However, the question remains whether it is a further step in deepening the chronic deficit of coherence in EU foreign policy. By externalising security cooperation the EU contradicts its policies in the fields of democracy promotion, rule of law, and human rights which are based on the EU's self-perception as a normative power. Thus, the following paper stresses three substantial contradictions of EU policy on illegal migration: first, EU policy contradicts its own efforts in democracy promotion, second, EU policy is in breach of European and international law, and third, the EU seems to prefer a short-term approach to a long-term effort that tackles the root causes of illegal migration in the southern Mediterranean.