Saturday 25 April 2009

EU: Progress in the area of freedom, security and justice (AFSJ)

One of the most important policy fields of the European Union (European Community), in addition to the original common market (later internal market), is the evolving area of freedom, security and justice (AFSJ), in British parlance often referred to as Justice and Home Affairs (JHA).

Currently, it is split between intergovernmental police and judicial cooperation in criminal matters, provided for by the Treaty on European Union (TEU), and other issues, treated in the Treaty establishing the European Community (TEC).

The Treaty of Lisbon would achieve a degree of normalcy, by bringing the basic rules together under Title V Area of freedom, security and justice, more or less in line with other policy areas subject to ‘Community legislation’.

The AFSJ is relevant for EU citizens and third country nationals, and it is one of the most rapidly evolving policy areas, despite exasperating procedures for parts of decision-making.


European Parliament

The European Parliament has held its annual debate on the progress made in the area of freedom, security and justice.

By 313 votes to 56, with 6 abstentions, the European Parliament voted a resolution, which can be found in the provisional compilation of texts adopted Friday 24 April 2009.

The heading of the resolution is (on page 277):


Annual debate on the progress made in 2008 in the Area of Freedom, Security and Justice (AFSJ)

European Parliament resolution of 24 April 2009 on the annual debate on the progress made in 2008 in the Area of Freedom, Security and Justice (AFSJ) (Articles 2 and 39 of the EU Treaty)



The European Parliament states the support of EU citizens for European level action, and it notes the evolving character of the area of freedom, security and justice. But the EP also remarks on a number of obstacles to progress (at member state level).


Lisbon Treaty crucial

The European Parliament underlines the importance of the Treaty of Lisbon, with the following arguments:

Calls on those Member States which have not ratified the Treaty of Lisbon to do so as soon as possible, as it will overcome the more significant shortcomings in the AFSJ by:

– creating a more coherent, transparent and legally sound framework,

– strengthening the protection of fundamental rights by giving binding force to the Charter of Fundamental Rights of the European Union ('the Charter') and by allowing the EU to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms,

– empowering citizens of the Union and civil society by involving them in the legislative process and granting them greater access to the Court of Justice of the European Communities (ECJ),

– involving the European Parliament and national parliaments in the evaluation of EU policies, thereby making European and national administrations more accountable.


Stockholm Programme

After the Tampere Programme and the Hague Programme, the European Union is preparing its next five year programme for the development of the area of freedom, security and justice. It will probably be known as the Stockholm Programme. These are the greetings from the European Parliament to the Commission and the member states’ governments:

The European Parliament calls on the European Council, the Council and the Commission to:

(a) formally involve the newly elected European Parliament in the adoption of the next multiannual AFSJ programme for the period 2010-2014, as this programme, after the entry into force of the Treaty of Lisbon, should be mainly implemented by the Council and Parliament by way of the codecision procedure; given that such a multiannual programme should also go far beyond the suggestions contained in the reports of the Council Future Groups, national parliaments should also be involved as they should play an essential role in shaping the priorities and in implementing them at national level;

(b) focus on the future multiannual programme, and primarily on the improvement of fundamental and citizens' rights, as recently recommended by Parliament in its resolution of 14 January 2009 on the situation of fundamental rights in the European Union 2004-2008, by developing the objectives and principles laid down in the Charter, which the institutions proclaimed in Nice in 2000 and again in Strasbourg on 12 December 2007.


Citizens’ rights

The EP resolution contains a number of concrete requests for improvements with regard to EU citizens’ rights.

There is no doubt that the policy issues involved are important for individuals, both EU citizens and third country nationals, since they comprise:

Free movement of persons
Visa policy
EU external borders policy
Schengen area
Judicial cooperation in civil and criminal matters
Drugs policy coordination
EU citizenship
Data protection
Fundamental rights
Racisim and xenophobia
Police and customs cooperation
Crime prevention
Fight against organised crime
External dimension of AFSJ
Enlargement from an AFSJ perspective

Ralf Grahn


  1. The "degree of normalcy" that the Treaty of Lisbon will bring is open to question. There are many dubious elements in the arrangements in relation to police and judicial cooperation as they do not seem to be fully transferred to the Community method, notably (i) because of the provision that a quarter of Member States can make proposals (which drives a coach and four through the Commission's right of initiative) and (ii) the introduction of the so-called "emergency brake".

    And what is one to make of Article 73 TFEU? "It shall be open to MS to organise between themselves and under their responsibility such forms of cooperation and coordination as they deem appropriate between the competent departments of their administrations responsible for safeguarding national security". This reads like a provision of a treaty inviting the signatories to act outside it.

  2. JL,

    Thank you for your comment. "A degree of normalcy" is far from the usual simplified explanantion that judicial matters become the same as other policy areas(almost).

    But I see the Treaty of Lisbon as a step in the right direction.

    The intergovernental roots are still visible, as you correctly point out.

    Security services, and the monitoring of them, are a perpetual challenge at national level. It is not easy to find a balance between their needs and safeguarding the public against potential abuse. It is even harder at an international level.

  3. The point I was making about Article 73, which should interest you as a lawyer, is: how will the ECJ interpret it? There are many aspects of proposals in the AFSJ area which could be seen as impinging on national security e.g. fight against terrorism. Does the provision mean that Member States, in any combination, can get together and decide what to do even if this parallels action being taken at an EU level?

    The question is not an academic one. The best solution would be for Member States not to avail of the article (or start a race with the Commission as to who is first with a proposal in the area of police or judicial cooperation) but I suspect that this will only happen when they find out the hard way that there is no alernative to the Community method.

    cf. my other posting on the Special Legislative Procedure.

  4. JL,

    Your question is interesting. Article 73 TFEU is new, so we don't have much to go on in the way of literature, and I warn you that I'm answering off the cuff.

    What I believe the member states have meant, is to signal that they reserve the freedom to agree bilaterally or plurilaterally outside the EU framework 'between themselves and under their responsibility' whatever they want.

    If I understand correctly, their agreements and actions are not EU acts or measures.

    In consequence, it is hard to imagine that the Court of Justice would have jurisdiction. From its point of view, the questions are off limits.

    As I see it, this is intergovernmental cooperation in a purified form.

  5. JL,

    As an afterthought I went back to the post I wrote about Article 73 TFEU, almost exactly a year ago (27 April 2008).

    It was written at a time, when the Council had published its provisional consolidated version of the Lisbon Treaty, but before the consolidation was published in the Official Journal.

    If the link works, you might find the post, although it appears that I did not find (or look for) references at the time:

  6. Article 73 is not excluded from the jurisdiction of the ECJ. It's introduction is just another example of the "knit your own" EU approach of the interior ministries of the larger Member States. One must hope that they have more sense than to use it.

  7. JL,

    As far as I know, the security services cooperate outside the EU framework and regardless of the Lisbon Treaty, whether we like it or not.


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