Policy change in the Area of Freedom, Security and Justice

How EU institutions matter

Florian Trauner, Ariadna Ripoll Servent

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317660453
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The EU plays an increasingly important role in issues such as the fight against organised crime and the management of migration flows, transforming the Area of Freedom, Security and Justice (AFSJ) into a priority of the EU's political and legislative agenda.

This book investigates whether institutional change - the gradual communitarisation of the AFSJ - has triggered policy change, and in doing so, explores the nature and direction of this policy change. By analysing the role of the EU's institutions in a systematic, theory-informed and comparative way, it provides rich insights into the dynamics of EU decision-making in areas involving high stakes for human rights and civil liberties. Each chapter contains three sections examining:

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• the degree of policy change in the different AFSJ fields, ranging from immigration and counter-terrorism to data protection

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• the role of EU institutions in this process of change

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• a case study determining the mechanisms of change.

The book will be of interest to practitioners, students and scholars of European politics and law, EU policy-making, security and migration studies, as well as institutional change.

Part I

Introduction

1 Setting the context

Why EU institutions matter in justice and home affairs

Jörg Monar

Introduction

Jean Monnet famously wrote that ‘nothing is possible without men and nothing is lasting without institutions’.¹ One would be hard-pressed to find a more frequently cited quote from one of the founding fathers of the European integration process, and one more often invoked to underline the enormous significance of the role of institutions in the process since its beginnings in the 1950s. Yet if one considers the wording of this well-known sentence more thoroughly, it appears to rather conservatively ascribe institutions, first and foremost, to the function of ensuring duration, preservation and continuity. As if wishing to reinforce the importance of the institutions’ preservation role, Monnet emphasised in a speech given before the European Coal and Steel Community (ECSC) Assembly in Strasbourg in September 1952 that institutions, if well constructed, can ‘accumulate and pass on the wisdom of the successive generations’.²

After over 60 years of European integration, there can be no question that Monnet was right in affirming the crucial importance of the development of institutions in providing a lasting basis and framework for what is today the European Union (EU). Yet this European construction has not only lasted, but has also proven to be a highly dynamic system. Especially during the last three decades, a most remarkable extension of the reach and substance of the EU’s policy fields have taken place, and the pace of ‘constitutional’ (i.e. treaty) change has far exceeded that of any other regional cooperation framework in the world. It is interesting to ask to what extent – and in what respects – this extraordinary change can be attributed to EU institutions, beyond their function of providing a lasting basis and continuity to the European integration process considered as so crucial by Monnet. It is the merit of this book to provide, at least within the limits of its scope, an answer to this question.

The justice and home affairs domain as a major testing stone for the role of EU institutions

The choice made by the editors to use the EU justice and home affairs (JHA) domain to explore the role of EU institutions in generating policy change is most pertinent, specifically in two respects. First, because this domain, now regrouped under the fundamental treaty objective of offering EU citizens an ‘Area of Freedom, Security and Justice’³ (AFSJ), can be regarded as one of the most dynamic policy-making areas in the history of the European construction. Initially introduced only within a relatively weak intergovernmental framework by the Maastricht Treaty in 1993, it has evolved within two decades into a largely ‘communitarised’ policy-making domain. It now covers much of the spheres of competence of at least two ministries in each of the member states,⁴ and, since the entry into force of the Treaty of Amsterdam in 1999, generates policy output at an average rate of ten new texts adopted every month by the JHA Council.⁵ This enormous expansion is intertwined with significant policy change as regards – to take up the editors’ useful distinction – both policy substance and the pursued forms of cooperation or integration. In the fight against organised crime and terrorism, for instance, the original focus on primarily ‘repressive’ law enforcement cooperation has been widened to include a range of measures on the prevention side. Also, action in this domain has significantly shifted from an extreme reluctance to adopt any binding criminal law measures during the 1993–99 post-Maastricht period to the current quite substantial EU criminal legal acquis. This includes both the mutual recognition of judicial decisions – with the European Arrest Warrant as a key achievement – and the harmonisation of substantive law, even if much of the latter remains rather minimalist in nature.

The second reason why the JHA domain is an interesting testing ground for assessing the role of EU institutions in policy change is that the very dynamism of the domain has provided specific opportunities and challenges for the EU institutions. The European Council and the Council, for instance, have had ample opportunity to shape what in the 1990s had still been a largely empty and open policy field outside of the constraints of the ‘community method’. The European Commission (‘Commission’ hereafter) had to live up to the challenge – especially after the extensive Treaty of Amsterdam reforms – to develop its own role in both policy initiation and implementation supervision. The European Parliament (EP) went through a major transition from almost systematic critical opposition to measures under the ‘third pillar’ (Title VI TEU) provisions to increasing partnership with the Council following the enactment of co-decision⁶ on most JHA measures. In addition, sufficient capabilities needed to be built into the institutional framework in order to respond to specific policy challenges in the JHA domain. The significant operational issues arising from the development of the AFSJ, for instance, have led the traditional policy management structures of the Council and the Commission to be complemented by a whole range of special agencies, starting with the establishment of the Europol Drugs Unit in 1994. The number of agencies and the extent of their operational coordination and intelligence tasks are unique in the entire EU context.

Main dimensions of the impact of the EU institutions on the development of the AFSJ

This book provides an advanced theory-based analysis of the impact of institutional factors and conditions on the decision-making and outcomes of JHA policy-making. With its combination of the, all too often separated, institutional and policy change spheres of scholarship, and its coverage of key policy-making fields and key cross-cutting issues, we think that it meets the editors’ declared objective to move beyond the state-of-the-art in the field. This chapter cannot – and should not – delve into the analysis, which is much more thoroughly and systematically developed in the subsequent chapters. Yet it may not be entirely without value to add in these opening pages a few general reflections on the main impacts that EU institutions have had in a historical perspective on the development of the EU JHA domain, and still currently have on the AFSJ as its latest political and legal embodiment. Three different dimensions of this impact can be distinguished.

The first of these is the role of institutions in identifying common challenges. In analytical approaches focusing on policy outputs, the importance of first identifying common challenges is not always fully appreciated, but is actually a crucial dimension of any collective action. In the JHA domain, more than in many other EU policy-domains, member states have retained primary competence as well as primary control of all operational means. For them to agree to common action in such sensitive domains as civil and criminal law, law enforcement and migration management – all of which can involve the acceptance of binding common legislation, the pooling of scarce financial and personnel resources and the subjecting of national operational means to the constraints of coordinated operational measures – requires a high degree of conviction that such common action is indeed necessary. This will not be attained without the identification and the acceptance of the relevant challenges, which in many cases within the AFSJ context take the form of ‘threats’ or ‘risks’.

The extent that the EU institutional framework has made a difference in this respect becomes clear if one compares common challenge/threat identification in today’s AFSJ with that in the TREVI⁷ framework of the 1970s, the first JHA cooperation framework among the European Community (EC, at the time) member states.⁸ TREVI was based on meetings organised by the rotating EC presidencies outside of the organisational and infrastructural framework of the Council, with no initiative role for the Commission (which was only admitted later as an observer) and without any permanent structural support.⁹ This means that there was no institutional threat analysis capacity and no institutional driving force capable of developing common perspectives on common threats and responses. It is therefore not surprising that the TREVI framework never generated a substantial common threat definition capable of forming the basis for a common strategy or action plan, not even in its original core field – the fight against terrorism. In fact, it remained limited to the exchange of information, experience and law enforcement mechanisms and techniques (Peek 1994). Today, common JHA challenges and threats are regularly discussed within various Council bodies, such as the Coordinating Committee in the Areas of Police and Judicial Cooperation in Criminal Matters (CATS) and the Working Party on Terrorism (TWP); JHA agencies also produce regular threat assessments, foremost the OCTA and TE-SAT Reports of Europol and the border risk assessments of Frontex; and the Counter-Terrorism Coordinator regularly assesses terrorist threats in his ‘discussion papers’ (for the most recent, see Council of the European Union 2012b). Based on these and other analysis and assessment activities, the European Council and the Council have adopted a host of reports and strategy documents that define the core elements of the common challenges that demand and justify common responses.¹⁰ The extent to which institutionalised common threat analysis and definition procedures have become part of the policy-making process is evidenced by the example of the EU ‘policy cycle’ on organised crime. It ensures a regular ‘cyclical’ revision of policy objectives and measures, and thus policy change, on the basis of a common assessment of the evolution of cross-border organised crime risks (see Council of the European Union 2010). Without the institutional structures and capabilities built up within the AFSJ, such sustained and systematic common threat identification would simply not be possible.

The second dimension of the impact of the EU institutions on policy change in the JHA domain is that of political leadership. In this respect, again, the comparison with the TREVI framework is enlightening. In the absence of any permanent institutions, cooperation within the TREVI framework was left to the varying impulses of the rotating presidencies and even more variable voluntary contributions from individual member states. This not only generated continuity problems, but also prevented TREVI from defining any concrete longer-term objectives that could have guided national policies and their coordination. It was only after JHA cooperation had been incorporated in the EU institutional framework and after this framework had been strengthened by the Treaty of Amsterdam reforms that real political leadership in the JHA domain emerged. The political leadership was first exercised primarily by the European Council, starting with the 1999 Tampere European Council, and then increasingly by the Co...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• Notes on contributors
• Acknowledgements
• List of abbreviations
• Part I Introduction
• Part II Migration policies
• Part III Internal security
• Part IV Citizens’ Europe
• Part V Conclusion
• Index