‘The next Justice and Home Affairs programme: will it be fit for purpose?’

By Henri LABAYLE , Steve PEERS and Emilio DE CAPITANI

“If a man does not know what port is he 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 (see here) on the future European Council guidelines on the post-Stockholm Programme in the Area of Freedom, Security and Justice (AFSJ) are quite disappointing , if not even 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 on the contrary, the perspective proposed by the Council Presidency looks rather surreal, if not disconnected from reality.
This is probably not a coincidence, so we have to consider that such a blindness is a deliberate choice, leading us to wonder , as it happens in any good detective story , to whom the crime will benefit… 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 – pure “lip-service”- as is the attempt to bury this space in commercial considerations.
EU public opinion will not be mistaken as will be probably vividly confirmed in the coming 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 of the Schengen cooperation, to the threats of restoring controls at the internal borders, to increasing fears about 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 in 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, as well the corresponding Commission duty to bring to justice Member States which have not correctly transposed EU measures.
The first signs from the Commission (see here) are not encouraging and it is more than likely that on 1st 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 will 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. Apart the legal complexity of such a political and institutional exercise (see the internal Council analysis here) the question will arise if UK citizens as a consequence of the UK opt-out will continue to benefit or not the same degree of security and freedoms as the EU citizens of the 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 clearly shows 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.
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, etc, …) will be impossible. This will also damage the quality of future dialogue with institutions which will act in a possibly different political context, less open than before to political compromises.

The lack of any critical assessment of the EU institutions’ organizational choices in the Council Presidency document is also appalling.
Take for instance the persistent lack of a dialogue between Interior and Justice Ministers (as implicitly admitted by the document itself), the Commission choice to split AFSJ policies in two portfolios (immediately after the long awaited consolidation of the first and third pillar), the persistent lack of clear institutional responsibility to face the new challenges arising from new EU responsibilities on migration and fundamental rights, or, last but not least, 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 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 avoid an excessive role of bureaucrats and diplomats in these policies (see the case of mobility partnership with third countries or of the Global Approach to Mobility and Migration or the so-called “policy cycle”, all instruments negotiated and implemented without any credible parliamentary 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 have a decisive role. 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

The AFSJ 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 not be dealt with 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 principle of proportionality and necessity highlighted by the recent EU jurisprudence ?

II – The challenge of efficiency

An efficient EU action in the AFSJ is as important as its constitutional and political framework. However you can’t be effective without the active support of Member States and EU citizens. Regrettably also on this perspective the Council Presidency document misses the target. Surely everyone can support the principles outlined in the document in favour of quality and efficiency of EU actions. 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 on 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 an expression of goodwill but an aspect of Member States’ collective responsibility before EU citizens when, for instance, protecting common 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 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 Treaty of Lisbon) 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 was 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 are available, were not comparable (so that it took years before sharing comparable data on migratory movements).
We all know that such a lack of cooperation between Member States and EU institutions is not a specificity of the AFSJ (as it is also widely present as regards internal market legislation). But in the AFSJ the outcome of these shortcomings is a lower level of trust between 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 also to Article 70 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, it therefore remains to be seen if it could also become a reference for other AFSJ policies.

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 2014/41/EU Directive on the European Investigation Order (OJ L130, 1/05/14) 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 real risk exists that 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.

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