ΙII. The evolution of the AFSJ 1

1. Hesitant evolution (6 steps) 1.1. Early intergovernmental attempts 1.1.1. Before Schengen Pompidou Group (drugs), terrorism etc 1975: Terrorisme, Radicalisme, Extremisme, Violence Internationale (TREVI) (MS police chiefs wining and dinning) TREVI I: Terrorism TREVI II: training and information exchange TREVI III: organised crime TREVI IV: opening up of borders SEA ‘86: 1986: Ad hoc immigration group 1989: UCLAF  1999 OLAF 1995: EUROPOL replaces TREVI Judicial cooperation: signature of 7 Conventions (penal and civil law) most of which not ratified by MS +++ Decision 85/381 (//98/34) on prior notification of migratory measures of the MS – upheld by CJEU  Dec 2006/668 1.1.2. Schengen (see PPS IV) 2

1. Hesitant evolution (6 steps) 1.2. The institutionalisation of intergovernmentalism: Maastricht T Pillars Core Role of JHA Council under unanimity Non-binding legal instruments: Conventions : ratified – mostly non-ratified Common actions: guidance for MS Parliaments Other non binding: resolutions, ccl, recommandations Lack of parliamentary or judicial control  Limited efficiency: 5 binding measures 2

EU’s Structure - Maastricht European Union 1 Pillar ECSC EAEC EC 2 Pillar CFSP 3 Pillar Migration + Asylum Police/Judicial cooperation 9/18/17 Vassilis G. Hatzopoulos 13

1. Hesitant evolution (6 steps) 1.3. Limited “communautarisation”: Amsterdam T Title IV + judicial cooperation BUT 5 year transition Integration of the Schengen Acquis BUT Opt outs More efficient legal instruments Title IV: normal EU acts  re-formating (Eurodac, Brussels I, Dublin) 3d pillar: framework decision // Dirs (Puppino’05) + decisions Consultation of the EP and ltd role for the ECJ Guiding role of EurCouncil: Tampere: 1999-2004 Hague: 2005-2009 Stockholm: 2010-14 European Agenda for Migration: 2015-20: Reducing incentives for irregular migration Saving lives and securing external borders Strong asylum policy New policy for legal migration 2

Creation of the Area of Freedom Security and Justice ΑFSJ (Lisbon) 1st Pillar Immigration- Asylum – Visas Judicial Cooperation in civil matters 2nd Pillar CFSP 3rd Pillar Police and Judicial cooperation in criminal matters FLEXIBILITY Schengen Acquis Prüm Treaty 3

EU Acts before the Lisbon Treaty European Union 1 Pillar Regulations Directives Decisions Recommend ations Opinions Other 2 Pillar Principles Common Strategies Decisions Common Action Common Positions 3 Pillar Common Positions Fr/work Decisions Decisions ++Conventions F L E X I B I L I T Y 9/22/17 Vassilis G. Hatzopoulos 6

Creation of the Area of Freedom Security and Justice European Union 1 Pillar ECSC EAEC EC Title IV 2 Pillar CFSP 3 Pillar Police and Judicial cooperation AFSJ Closer cooperation 9/18/17 Vassilis G. Hatzopoulos 15

1. Hesitant evolution (6 steps) 1.4. The “community method” re-empowered: Nice T  Management of the end of the “transitional period”: Dec 937/04 for the passage from unanimity to QMV (but for legal immigration) 2

1. Hesitant evolution (6 steps) 1.5. The full integration : Lisbon T 1.5.1. Full EUization AFSJ becomes a shared competence BUT, special arrangements: Role of European Council (68 TFEU) MS Parliaments control subsidiarity (69 TFEU) Standing committee in the Council (71 TFEU) Legislative initiative: COM, ¼ MS (76) Special blocking minority in the Council Political scrutiny of Europol (88 TFEU) Control of all acts, including of Europol Veto from 1 ΜS ( 4 months EurCouncil – 82(3) TFEU) Ordinary legislative procedure (co-decision) + Consultation Closer cooperation from 9 ΜS Rights based approach (EUCFD + accession to the ECHR) 2

Abolition of the pillars European Union Internal market WHO? EurParl+Council (Commission) HOW? Majority AFSJ WHO? EurParl+Council (Commission/MS/EurCounci l) HOW? Majority + Unanimity CFSP WHO? EurCouncil+ Council+ HighComm HOW? Unanimity 5

1. Hesitant evolution (6 steps) 1.6. BUT Looming intergovernmentalism : the Prüm Treaty 2005 Convention on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration, Promoted by Germany + Austria, BENELUX, France, Spain Now 14 signatory states Partly “communautarised” by Dec 2008/616 2

2. A multi-speed Area 2.1. For the Schengen acquis Ireland (and the UK) are not members but May subscribe to the acquis at any time, wholy/partially Receive notification of any new measure for them to opt in Denmark is member but is only bound by the acquis as it stood at the time of “communautarisation” Norway and Iceland (associated since 1996) Agreement with the 26: negotiate but do not vote Agreement with the UK/Ireland: for their parts in the acquis Switzerland: Bilatérales 2004 New MS: transitory periods + Bulgaria, Romania, Cyprus, Croatia are still OUT 2

2. A multi-speed Area 2

2. A multi-speed Area 2.2. For Title IV policies Ireland (and the UK) Do not participate in decision making – are not bound – do not pay May within 3 m from the notification of a draft declare that they wish to participate, BUT may not block indeterminately May declare their intention to be bound by an adopted measure Denmark Does not participate – is not bound – does not pay May within 6 months from the adoption of a measure decide to adopt an obligation under international law May “exit” the protocol Norway and Iceland: Dec EC/1999/439 2

2. A multi-speed Area 2.3. For the impact the AFSJ has on 3d country nationals Ireland (and the UK) 2.4. For the different programmes and other initiatives 2.5. For its external dimension 2

3. Critiques Institutional complexity – internal and external Internationalisation of migratory policy as the result of institutional venue shopping Transformation of the executive power into legislative + Agencies – in an area where sensitive human rights are at stake Schengen acquis was based on police priorities – has been “communautarised” by a single stroke, without EP or MS parliaments understanding 2