Thursday, 18 November 2010

Inquisition v. Giordano Bruno in EU area of freedom, security and justice (AFSJ)?

My latest post about the conflict between the Council (member states) and the Commission regarding the EU's Stockholm Programme left me wondering if we should go back in order to move forward.


Lisbon Treaty at a tender age

For some background on EU justice and home affairs (JHA), you could read the following blog posts concerned with the Treaty reform stages which led to the Treaty of Lisbon: EU TFEU: Area of freedom, security and justice I (21 April 2008), EU TFEU: Area of freedom, security and justice II (22 April 2008) and EU TFEU: Strategic guidelines for freedom, security and justice (22 April 2008).


Solemn promises to EU citizens

The signing heads of state or government and the ratifying parliaments made the citizens of the EU a few solemn promises. They could not have placed the founding values, emphasising civil rights and freedoms, much higher than they are, in Article 2 of the Treaty on European Union (OJEU 30.3.2010 C 83):

Article 2 TEU

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Already in Article 3(2) TEU they make a firm commitment, ”shall offer”:

Article 3(2) TEU

2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

If you are interested in textual hierarchy, you may notice that this text precedes the establishment of an internal market, mentioned in paragraph 3.


AFSJ

The concrete provisions on the area of freedom, security and justice (AFSJ) are found in Title V of Part Three of the Treaty on the Functioning of the European Union (TFEU), more precisely the Articles from 67 to 89.

While Article 67 TFEU lays down the general aims, Article 68 underlines the role of the European Council in setting the strategic guidelines for the AFSJ:

Article 68 TFEU

The European Council shall define the strategic guidelines for legislative and operational planning within the area of freedom, security and justice.

Back in April 2008 I wrote that the European Council was the most important institution of the European Union.The power to define the guidelines was hardly going to diminish this position, even if the official reason for the provision was (only) to codify existing practice, as when the Tampere Programme and the Hague Programme were adopted.


Criteria?

However, it would seem that the guidelines have to fulfil the criteria of the founding values and the area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured. These have been promised to the EU citizens. They are among the expectations of citizens in an objective sense, and EU action would have to be effective enough to attain the goals.

On the other hand, how binding are ”strategic guidelines” for legislative and operational planning?

Is the JHA Council the only authority of importance, when it wants to instate the strategic guidelines as the only guiding frame of reference for the political and operational agenda of the European Union in the Area of Justice, Security and Freedom [sic!]?

Who was right, the Inquisition or Giordano Bruno?

Update: Sorry, I missed providing a link to the Wikipedia article on the fascinating life of Giordano Bruno. For those who read Italian there is a brief biography by Anna Foa: Giordano Bruno (il Mulino).

Perhaps we have cause to look for a second opinion on what the Stockholm Programme should achieve.




Ralf Grahn



P.S. If you have to keep up with what the tribalists are doing, England Expects is one of the nicer ways to go about it. Written by the UKIP press officer Gawain Towler the blog is frequently updated, it is not devoid of humour and sometimes the EU institutions would be well advised to take its criticism to heart.