Implementing the Lisbon Treaty Improving the Functioning of the EU on Justice and Home Affairs


AUTHORS : Dr.  Sergio  Carrera  and Prof.  Elspeth  Guild .

The functioning of EU Justice and Home Affairs (JHA) policies has been subject to important institutional and legislative reforms after the entry into force of the Lisbon Treaty in 2009. This study has examined the most important changes brought about by this new Treaty framework on European cooperation covering the Area of Freedom, Security and Justice (AFSJ)  and  explored  concrete  ways  to make  their  implementation  more  effective.

The Lisbon Treaty introduced six main transformations to previous JHA cooperation setting which aimed at ensuring more legitimate, democratic and accountable EU decision-making in the JHA policy field:

  • First, the end of the former (First/Third) pillar divide and the expansion of the Community method of cooperation to a majority of JHA fields;
  • second, a stronger democratic accountability via an enhanced role played by the European Parliament and national parliaments;
  • third, a legally binding EU Charter of Fundamental Rights;
  • fourth, a wider judicial scrutiny by the Court of Justice of European Union (CJEU);
  • fifth, the establishment of new EU security and justice agencies;
  • and finally, the development of new external   dimensions  of  JHA policy.

During the last five years the EU has adopted more than two-hundred legal acts falling under Title V (Area of Freedom, Security and Justice) of the Treaty on the Functioning of the European Union (TFEU).

Yet, the above-mentioned innovations have been subject to exceptions and differentiation.

These have covered the use of enhanced cooperation and special legislative procedures, a privileged position (‘opt out’/’opt in’ method) by the UK and Ireland, and transitional limitations affecting the enforcement powers by the Commission and the CJEU over police and criminal justice judicial cooperation and which came to an end in December 2014.

This study has signalled four main challenges affecting the implementation and effective operability of EU JHA cooperation as foreseen in the Lisbon  Treaty:

A first challenge relates to the inconsistency emerging from differentiation and variable geometry in European cooperation. While enhanced cooperation has been used in very limited occasions, furthering differentiation in JHA through the use of ‘integration or concentric circles’ could lead to the emergence of various ‘areas’ where different degrees of freedom, security and justice would exist.

Such a fragmented picture would contravene the Treaty objective of establishing one “common Area where EU citizens enjoy the same European standards and rights across the Union’s territory. It would also challenge the practical effectiveness of EU JHA law acquis. Furthermore, discussions on the feasibility and desirability of different paths of integration for different countries draw attention away from the fact that much remains to be done to fully implement those Treaty articles playing a key  role in  strengthening  the commonality  of  the  EU  AFSJ.

A second challenge relates to the negative impact that ‘variable geometry’ inflicts on EU citizens and residents’ rights and freedoms. The proliferation of parallel, concentric and even competing ‘areas’ of JHA cooperation may lead to a lack of legal protection or cases of discriminatory treatment depending on which area the individual happens to be or exercise free movement EU fundamental rights and freedoms enshrined in the Treaties and the EU Charter of Fundamental Rights should not be geographically conditioned to where an EU citizen or resident is across the EU.

Moreover, any future legislative reform or Treaty change should not leave the door open to lowering down existing EU citizenship rights and freedoms.

There are important practical issues and obstacles in the full exercise of democratic accountability throughout the application of the ordinary legislative procedure.

The last five years have demonstrated that a number of barriers still persist towards the full acceptance and recognition of the EP as co-legislator and policy-setter in AFSJ policies. A case in point is the external dimensions of JHA. Another issue relates to the actual ways in which the ordinary legislative procedure works in practice, which is often subject to flexibility, informalities (e.g. ‘trilogues’) and early compromise   agreements which pose internal barriers towards transparency and accountability in legislative procedures. There is also not enough attention paid to the fundamental rights compliance of the EP’s internal legislative work and fundamental rights impact assessments in all relevant phases of the drafting of legislation.

A final challenge concerns the lack of effective instruments or mechanisms to duly safeguard the foundations of the EU AFSJ and its legal principles enshrined in Articles 2 and 6 TEU. The presumption of mutual trust between the Member States on their compliance with rule of law and fundamental rights has been increasingly at stake during the last five years of implementation of the Lisbon Treaty.

This is especially so in those EU JHA legal domains working on the basis of the principle of mutual recognition of judicial and administrative decisions.

The EU faces a ‘Copenhagen dilemma’ consisting of the lack of an effective and legally binding monitoring/supervisory mechanism of EU Member States’ compliance with rule of law principles and fundamental rights after accession. If EU Member States cannot guarantee an independent and impartial judiciary able to test whether the EU State to which an EU citizen who is a suspect in criminal proceedings or a third country national seeking asylum are going to be sent to complies with fundamental rights, how can the  principle of mutual  recognition stay valid?

The Study suggests that any future legislative or Treaty change should not promote or enable further differentiation or fragmentation in the next generations of EU AFSJ cooperation. It should neither allow for restricting existing EU rights and freedoms enjoyed by European citizens and residents. The European Parliament should give priority to devising and ensuring the effective implementation of a mutual trust-building agenda in the next generations of EU AFSJ cooperation.

The agenda would focus on the following three trust  enhancing  policy  actions:

First, implementation and evaluation: The European Parliament should focus on ways to ensure more timely, consistent and effective implementation of EU JHA legislation by EU Member States authorities. The relevant Parliament Committees could play a more actively role in following up the ways in which the Commission enforces the transposition JHA law. A new evaluation system should be developed on the basis of Article 70 TFEU to better ensure the full application of the principle of mutual recognition and strengthen mutual confidence  in  domains  such as judicial  cooperation in criminal  matters and  asylum   policies.

Second, accountability, transparency and fundamental rights: The European Parliament should adopt an internal strategy aimed at strengthening internal accountability, transparency and fundamental rights compliance in the operability of the ordinary legislative procedure  and  other relevant  legislative processes   on  JHA cooperation.

Third, the rule of law: The Parliament should call for the adoption of a new ‘EU Copenhagen mechanism’ to ensure independent and regular monitoring of rule of law compliance by EU Member States after accession. This mechanism should be based on independent academic expertise.

It could be linked the monitoring processes and results of the European semester cycle on economic governance. This could take place through a ‘rule of law, democracy and fundamental rights Copenhagen Policy Cycle’ which would formalize EU inter-institutional coordination. The Parliament should play an active role. A new Copenhagen (rule of law) mechanism should not remain a purely inter-governmental process under the remits of the Council or an agreement between EU Member States. Instead it could be legally built under the current Article 7 TEU by mainly focusing on further elaborating and making more transparent the ways in which this provision is triggered by Council, Commission and/or the European Parliament.

No Treaty change would be required for such an instrument to be established. From a longer-term perspective, democratic accountability and judicial controls of such an instrument could be further ensured and formally foreseen in the Treaties, which could  in  turn  imply  Treaty change.

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