Lecture 3 of the Course European Law (2016/2017), Utrecht University. 

Lecture 3, The Area of Freedom, Security and Justice

We have to try to understand the reasons for why we have an area of freedom, security and justice. How does that function? That is legislation. And then the look at the powers that have been given from the Member States, to the EU. The European Union is what the Member States decided to give to the EU.

Why do we have the AFSJ?

Before the EU, there was an European community. When you wanted to cross the border, you had some time to spend hours in the traffic jam. Some Member States decided that it would be good to abolish the frontiers between the Member States. In 1985 (Schengen-agreement) principles were laid down between Luxembourg, Belgium, the Netherlands, France and Germany. In 1990 there was the Convention on the Implementation of the Schengen agreement.

There were things needed to open the borders. There was a need for compensatory measures to address:

• Asylum and immigration (not all people are welcome in the Member State)
• Border controls
• Criminal activities (criminals can move easily when there are no borders)
• Civil matters (marriage with a foreign person)

If you open the borders, then you will have all kind of problems to address. It would be nice to use that we had by this time, the institutions to implement these rules.

There was a formal intergovernmental cooperation in Justice and Home Affairs (JHA), with specific legal instruments, unanimity, and a limited role of EC institutions. This was followed by the Treaty of Amsterdam and Treaty of Lisbon.

The Justice and Home Affairs cooperation became more supranational after the Treaty of Lisbon, and became Area of Freedom, Security and Justice (Part III, Title V TFEU). Rules before the Treaty of Lisbon have no direct effect (Protocol N. 36, Article 9).

The AFSJ is an objective of the EU.

The Treaty defines the AFSJ as one of the objectives of the EU. This is also dressed in article 3(2)TEU: ‘’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’’.

This is not just an advantage for EU citizens, but also for people outside of the EU, for example asylum-seekers. The Member States want to reach a closer Union between them. Also the rights of people outside the EU are being protected and regulated.

The AFSJ is based on mutual trust between the Member States. This allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the AFSJ, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with Eu law and particularly with Eu fundamental rights.

Article 67 TFEU

De definition of the AFSJ is in article 67 TFEU. First, there is an area. This is the place where the legislation applies on the Member States. Secondly, there are freedoms, for example the freedom of establishment and the freedom of workers. Thirdly, security (internal security, the preserve of the Member States). At last, the justice: access to tribunal.

EU competence in the AFSJ

There is a shared competence between the EU institutions and the Member States. This means that as long as the EU has not exercised its competence, the Member States may exercise the competence (shared competence, article 4(2)(j) TFEU). Principles of proportionality and subsidiarity apply (art. 5 TEU, art. 69 TFEU and art. 7(2) Protocol No 2). It is important whether to see if the regulation fulfils the proportionality and subsidiarity. The legislation should be proportionate and subsidiary.

There is also the Yellow card procedure subsidiarity control from national parliaments. The commission is not obliged to retreat the proposal.

Decision making

The European Council has the central role in the AFSJ regulation (article 68 TFEU). The Council adopts conclusions. Based on these conclusions, the Commissions will make enacting plans. They will implement the Programmes. So the European Council set the guidelines and the Commission forms the legislation. It will look into the Treaties: what is the legal base, and then form the legislation. This will happen according to the Ordinary Legislative Procedure (art. 294 TFEU), but there are exceptions.

For criminal law there is a shared right of initiative with the Member States (art. 76 TFEU). The Treaty also requires the unanimity in some cases. There is also an emergency brake if a Member State considers that a draft Directive on criminal law of criminal procedure, and if the Member State is afraid that this Directive would affect fundamental aspects of the criminal justice system of the Member State.

There must always be a legal base. What exactly can the EU do in the respect of border checks, asylum and immigration? First, there must be a legal basis under Title 5, art. 77-80 TFEU. There are common rules on external and internal borders controls (Schengen Borders Code), common rules on entry, visas and immigration and common rules on asylum seekers (Common European Asylum Policy).

Mutual trust is important! There is a shift to defend that trust cannot be blind (mutual recognition). The trust must be mutual.

EPPO

European Public Prosecuting Office > There is a legal base to create EPPO (art. 86 TFEU). This never actually happened, because the Member States are afraid for their sovereignty. There is unanimity required, or enhanced cooperation. If there is no unanimity, but 9 Member States want to cooperate, this is possible (enhanced cooperation).