Henri LABAYLE : TOWARDS THE NEGOTIATION AND ADOPTION OF THE STOCKHOLM PROGRAMME’S SUCCESSOR FOR THE PERIOD 2015-2019

On 2013 the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE) asked for a Study on the implementation of the Stockholm Progamme.
Authors : Mr Henri Labayle, Professor at the University of Pau and Pays de l’Adour, Faculty of Law at the University of Bayonne, member of the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe for France. In collaboration with Mr Philippe De Bruycker, Professor at the Institute for European Studies and Faculty of Law at the Université Libre de Bruxelles, Coordinator of the Odysseus Academic Network for Legal Studies on Immigration and Asylum in Europe.

The full study is downloadable here.

SUMMARY

The evaluation of the Stockholm Programme is a good opportunity to evaluate the initial outcomes of the Treaty of Lisbon, since it clearly highlights the imbalances which characterise the area of freedom, security and justice:

an imbalance between freedom and security, due firstly to the discrepancy between the rules in place to protect individuals and their implementation in practice and secondly to the backlog in adopting personal data protection standards;
an imbalance between justice and security due to the absence of a genuine European judicial area in spite of the adoption of the Internal Security Strategy;
an imbalance between harmonisation and operationalisation due to a regulatory gap despite a proliferation of agencies and policy instruments;
an imbalance between Member States within the AFSJ framework, which has been fragmented due to the failure on the part of the Mediterranean countries to prioritise geopolitical issues and the preferential use of ‘opt-outs’ by certain Member States;
an imbalance between the management of legal immigration, which is stagnating despite the low targets set in this area, and the fight against illegal immigration, which is progressing well with plans for major investments in databases;
an imbalance between the internal and external dimensions of European policies due to the failure of the Treaty of Lisbon to clarify an institutional landscape which remains complex and contentious.
The picture is not all bleak, of course, and there have been a number of concrete successes which deserve to be highlighted:
the adoption of the asylum package in a difficult climate, which was a major step towards more harmonised legislation in the Member States;
the increasingly operational nature of European policies as a result of agencies being strengthened (Frontex) or established (European Asylum Support Office, Agency for large-scale IT systems in the AFSJ) even though the ‘Lisbonisation’ of Europol and Eurojust is still overdue, and due to the emergence of practical e-justice models and the adaptation of tools to fight drugs and terrorism, although work remains to be done in the fields of data protection and information sharing in the fight against serious crime;
progress has been made in building the mutual trust between Member States which is essential for mutual recognition, in some cases on the basis of national initiatives such as those concerning the protection of individuals;
the backlog in the area of civil judicial cooperation has been cleared and progress in this area is likely to continue, with a large number of initiatives close to adoption;
procedural rights in criminal proceedings are among the main achievements of the Stockholm Programme, despite the piecemeal approach adopted after the failure of the global approach;

Towards the negotiation and adoption of the Stockholm Programme’s successor

the approximation of substantive criminal law has found its footing with the ‘Lisbonisation’ of previous framework decisions and the opening up of new fields of work, despite the extreme political sensitivity of this issue for the Member States.

Major concerns remain, however.

The first relates to guarantees for the rule of law, given that the controversy surrounding the constitutional reforms in Hungary proved that the EU does not have the necessary tools to force Member States to respect its fundamental values.
The EU’s capacity to handle crises is a second matter of concern: the collapse of the asylum system and external border checks in Greece has revealed the ineffectiveness of the existing evaluation mechanisms, while the European Asylum Support Office has failed to leverage the humanitarian tragedy of the Syrian refugees to assert its position. These two crises also testify to the lack of solidarity between Member States.

The evaluation suggests that the future programme will be faced with challenges in three areas:

political challenges: although fundamental rights protection does not fall solely under the heading of justice and home affairs, it remains of vital importance in this area, particularly as regards the protection of personal data at a time when the PRISM scandal is testing the EU’s capacity to respond. Although the Treaty of Lisbon made solidarity one of the constitutional principles of the area of freedom, security and justice, this has meant little in practice; even though the operational dimension of solidarity is starting to take shape, its financial dimension will remain glaringly inadequate under the 2014-2020 financial perspective.
institutional challenges: the Treaty of Lisbon conferred a central role on the European Council, which must agree to involve Parliament in AFSJ programming in line with the principle of cooperation in good faith between the institutions. As a minimum, this involves postponing the adoption of the next programme until after the June 2014 elections to allow the involvement of the newly elected institutions.
• technical challenges: there has been a decline in the ex-post evaluation of AFSJ policies following the failure of the Commission’s 2006 proposal; the scoreboard may only have been a descriptive tool, but it has now vanished entirely. The culture within DG Home Affairs needs to change in response to the problem of Member State monitoring by the Commission; a significant body of legislation has been adopted over the past decade and more, and DG Home Affairs now needs to ensure that it is applied effectively by initiating non-compliance proceedings.

The extreme reluctance of the Member States to engage in evaluation activities means that a genuine programme is needed if they are to be persuaded or indeed forced to provide the necessary accountability in this area, quite apart from the fact that whole swathes of the area of freedom, security and justice remain untouched. Despite general scepticism, the era of programmes is not yet over: even if it proves to be less detailed than the Hague and Stockholm Programmes and to have more in common with Tampere, the strategic guidelines of the next legislative and operational programme will be of decisive importance for future progress in the area of freedom, security and justice.

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