Jorg Monar

Cooperation in the Justice and Home Affairs Domain: Characteristics, Constraints and Progress

Abstract Justice and Home Affairs cooperation in the European Union has developed rapidly since the end of the 1990s. Now under the label of the ‘Area of Freedom, Security and Justice’, the EU’s responsibilities have grown considerably in the effort to combat cross–border crime (including terrorism) and illegal immigration. This article outlines recent developments in this area, along with key obstacles to continued cooperation. The analysis focuses on five dimensions of security and risk management related to JHA cooperation: the conceptual context in which cooperation takes place, the various policy–making initiatives, the role of information exchange and analysis, operational instruments and the various aims of legislation. These dimensions shed light not only on the EU’s particular role in this increasingly active area of policy making, but also on the main challenges to further cooperation and integration.

The Finances of the Union's Intergovernmental Pillars: Tortuous Experiments with the Community Budget

The Union Treaty offers the Council the possibility of using the Community budget to finance measures under the two intergovernmental pillars. Some Member States are reluctant to do so because they fear that the application of Community budgetary procedures might lead to a communitarization of intergovernmental action through the back door. Yet, it has proved to be very difficult for the Member States to agree on how to finance such measures out of their national budgets. The Council has therefore increasingly used the EC budget for measures under Titles V and VI. The way in which this has been done, however, has caused serious interinstitutional friction, has blurred political and budgetary responsibilities within the Community system, and raises questions about adequate parliamentary control and the efficiency of the present system of financing.

The EU's approach post-September 11: global terrorism as a multidimensional law enforcement challenge

In response to the threat of terrorism following 9/11, the European Union has opted for a clear cross-border law enforcement approach that is quite distinct from the putative ‘war on terror’. This choice has been determined by factors of history, divergent threat perceptions, relative value orientations and restricted competences. And yet, far from limiting itself to a traditional ‘internal’ law enforcement focus, the EU has developed an extensive multidimensional approach that combines legislative and operational, repressive and preventive, internal and external, as well as institutional, measures. But weaknesses persist: the preference given by member states to instruments of cooperation and coordination, rather than integration, as well as the poor implementation of many agreed-upon measures, negatively weigh against the effectiveness of the EUs multidimensional law enforcement approach. Legitimacy deficits also exist owing to limited parliamentary and judicial control. These deficits will need to be addressed to reinforce the credibility of the EUs approach as a viable ‘European’ alternative to the US ‘war on terror’.

Institutional constraints of the European union's Mediterranean policy

The European Unions policy in the Mediterranean suffers from a gap between its apparent potential to act and its actual performance. This discrepancy can be explained in part by the particular institutional and procedural constraints of the Unions ‘dual’ system of foreign affairs. These constraints make the Union a clearing‐house for national interests rather than a unitary actor, they lead to an in‐built tilt towards economic measures and they create difficulties for its partners in terms of transparency and predictability. Cases such as the implementation of the Euro‐Mediterranean Partnership, the association agreement with Jordan of 1997 and financial co‐operation with Turkey all demonstrate the limitations that the system imposes on the Unions Mediterranean policy decision‐making and implementation.

Justice and Home Affairs in the EU Constitutional Treaty. What Added Value for the ‘Area of Freedom, Security and Justice’?

Area of freedom, security and justice. One of the most significant developments in European Integration. Assessment of the contribution of the Constitutional Treaty to further development. Formal abolition of pillar structure partially undermined by special provisions. Relevance of Charter of Fundamental Rights. Union powers strengthened, but likelihood of restrictive interpretation. Revised policy objectives: few new openings, but possibly important implications. Solidarity as a new integration principle. Is majority voting justified in particularly sensitive areas such as police and judicial co-operation in criminal matters? Monstrosity of the emergency-brake procedure. Strengthening of European Parliament and Court of Justice, but not overall. Perspective of enhanced co-operation.

The EU's Externalisation of Internal Security Objectives: Perspectives after Lisbon and Stockholm

The EU as an area of “freedom, security and justice”, faces a number of internal security concerns, such as organised crime, terrorism and illegal immigration which require external measures to combat them effectively. Limited progress has been made in the four dimensions of externalisation of EU internal security (the integration of internal security objectives into EU external relations strategy, cooperation with third countries, capacity building in third countries and common action within international organisations) and the EU must continue to expand its capabilities to use external measures to help solve internal security challenges. The Treaty of Lisbon and the 2010–14 Stockholm Programme are both likely to foster further externalisation of EU internal security objectives, but whether this becomes reality will depend to a large degree on the Commissions Action Plan.

EU internal security governance: the case of counter-terrorism

There are clear indicators that in spite of the sensitivity of internal security in terms of essential state functions and national sovereignty an EU governance framework with specific characteristics has emerged in the counter-terrorism field. Common threat assessments guide governance responses, and specific institutional structures, cooperation mechanisms, legal instruments, and forms of external action have been put into place to respond to the cross-border nature of the terrorist challenges. However, in line with the general subsidiary role only of the EU as provider of internal security in addition to the Member States, this governance framework remains based on the interaction and cooperation between national counter-terrorist systems and capabilities that remain largely under national control and still enjoy relatively wide margins of discretion in terms of priorities, legal framework, and organization. This analysis concludes that the EUs internal security governance – as evident from the counter-terrorism field – may be best characterized as an advanced institutionalized system of cooperation and coordination between national governance frameworks constructed around a core of common instruments and procedures with a cross-border reach.

The EU's growing external role in the AFSJ domain: factors, framework and forms of action

External action has been of growing importance for the Unions Area of Freedom, Security and Justice (AFSJ) and accounted in 2011 already for over 19 per cent of all texts adopted by the Justice and Home Affairs Council. AFSJ related external action has also added a new dimension to previously existing fields of EU external relations. This article first considers the internal and external factors which have influenced the development the external side of the AFSJ and the impact of the post-Lisbon legal and institutional framework, including the special context created by the ‘opt-outs’ and coherence problems within this framework. It then provides a survey and analysis of the main forms of EU action in this domain (strategy formulation, cooperation with third countries, capacity-building and cooperation with and within international organizations) before assessing—in the conclusions—the implications of this external dimension for both the EU and the Member States and its future developments prospects.

Justice and Home Affairs: The Treaty of Maastricht as a Decisive Intergovernmental Gate Opener

Abstract The introduction of ‘cooperation in the fields of justice and home affairs’ in the guise of Title VI of the Treaty on European Union can be regarded as one of the most momentous innovations of the Treaty of Maastricht. In 20 years it has turned from a loosely framed and largely intergovernmental cooperation framework into a fundamental treaty objective which has generated over 1400 texts adopted by the Council and a range of new EU institutional structures such as Europol and Eurojust. This article will show that the Treaty of Maastricht — although it did not provide for clear objectives, adequate legal instruments and effective decision-making procedures in the JHA domain — nevertheless marked at decisive breakthrough for this policy-making domain. It did so by opening the entire domain for regular institutionalised cooperation between the member states, allowing for the development of a common perception of the challenges and a gradual agreement on basic objectives and principles which a few years later — when the Treaty of Amsterdam had removed some of the legal and institutional obstacles left in place by the Maastricht Treaty — allowed for an extraordinarily rapid development of what is now the Union’s ‘area of freedom, security and justice’.

Eurojust and the European Public Prosecutor Perspective: From Cooperation to Integration in EU Criminal Justice?

Abstract Since its formal establishment as a treaty objective in 1999 the EUs area of criminal justice has been primarily based on mechanisms and instruments facilitating cooperation between national judicial authorities. Because of the political sensitivity of the criminal justice domain member states have largely avoided extensive harmonisation and hierarchical structures. While some real progress has been achieved the absence of a more integrated cross-border criminal justice system continues to reduce the effectiveness of cross-border cooperation. Since its establishment in 2002 Eurojust has been at the frontline of the emerging criminal justice area, and the gradual strengthening of Eurojust has been among the primary EU responses to the continuing dysfunctionalities of its criminal justice area. This process has already introduced elements of subordination of national authorities to Eurojust because of its evolving initiative, guidance, monitoring and external relations functions. The strengthening of the functions of Eurojust through the 2008 Eurojust decision straddles the borderlines between a purely cooperation based system and one with distinctive elements of integration. The Articles 85 TFEU on Eurojust and 86 TFEU on the EPPO introduced by the Lisbon Treaty have created the potential of a decisive shift towards integration in the criminal justice area. This shift would already be important in case of the strengthening of Eurojusts initiative, coordination and conflict resolution powers in line with Article 85, even though the treaty provisions leave the choice between ‘harder’ and ‘softer’ implementation options. Yet the transformation could be dramatic in case of the establishment – ‘from Eurojust’ – of the EPPO whose powers would have a direct reach into the national criminal justice systems and create the need for a significant harmonisation of both procedural and substantive criminal law and major implications even for the national police systems.