Thearea of freedom, security and justice (AFSJ) of theEuropean Union (EU) is a policy domain concerninghome affairs and migration, justice as well as fundamental rights, developed to address the challenges posed tointernal security by collateral effects of thefree movement of people andgoods in the absence ofborder controls orcustoms inspection throughout theSchengen Area, as well as to safeguard adherence to the commonEuropean values through ensuring that thefundamental rights of people are respected across the EU.
Over the years, the EU has developed a wide competence in the area of home affairs and migration, fundamental rights and justice. As internal borders have been removed within the EU, cross-border police cooperation has increased to counter cross-border crime. Some notable projects related to the area are theEuropean Arrest Warrant, theSchengen Area andFrontex patrols. Fields covered include the harmonisation of private international law, extradition arrangements between member states, policies on internal and external border controls, common travel visa, immigration and asylum policies and police and judicial cooperation.
For example, the EU operates facilities such as theSchengen Information System,[1] theVisa Information System, theCommon European Asylum System, theEuropean Travel Information and Authorisation System, theEntry/Exit System, theEurodac, theEUCARIS, theEuropean Criminal Records Information System, theEuropean Cybercrime Centre,FADO,PRADO and others.
Furthermore, the EU has legislated in areas such asextradition (e.g. theEuropean Arrest Warrant),[2]family law,[3] asylum law,[4] andcriminal justice (e.g. theEuropean Investigation Order).[5]
TheEuropean Commission has listed seven offences that become European crimes.[6][failed verification] The seven crimes announced by the commission arecounterfeiting euro notes and coins; credit card andcheque fraud;money laundering;people-trafficking; computer hacking and virus attacks; corruption in the private sector; andmarine pollution. The possible future EU crimes areracial discrimination andincitement to racial hatred;[7]organ trade; and corruption inawarding public contracts. It will also set out the level of penalty, such as length of prison sentence, that would apply to each crime.
Prohibitions against sexual and nationality discrimination have a long standing in the treaties.[8] In more recent years, these have been supplemented by powers to legislate against discrimination based on race, religion, disability, age, and sexual orientation.[9] By virtue of these powers, the EU has enacted legislation on sexual discrimination in the work-place, age discrimination, and racial discrimination.[10]
Denmark and Ireland haveopted out from the area of freedom, security and justice. While Ireland has opt-ins that allows it to participate in legislation on a case-by-case basis, Denmark is fully outside the area of freedom, security and justice.[citation needed] Denmark has nonetheless been fully implementing theSchengenacquis since 25 March 2001, but on an intergovernmental basis.[11] Ireland has in turn opted out from the Schengen Area in order to preserve theCommon Travel Area. Nevertheless, it applied to participate in the police and judicial cooperation provisions of the Schengenacquis in June 2000 and obtained approval by a Council Decision in 2002,[12][13] though it has not been implemented.[14]
Despite AFSJ opt-out, Denmark participates through various arrangements in allAFSJ decentralised agencies exceptCEPOL; in parallel, Ireland has arrangements to participate in all AFSJ decentralised agencies exceptFrontex. Under the AFSJ opt-out, Denmark and Ireland are barred from joining theEuropean Public Prosecutor's Office, while Hungary has decided not to participate.
In the negotiations leading up to the signing to theLisbon Treaty,Poland (and theUnited Kingdom at the time) secured a protocol to the treaty limiting the application of theCharter of Fundamental Rights of the European Union in the country.
The United Kingdom had an opt-out like Ireland prior to itswithdrawal from the EU. It applied to participate in several areas of the Schengenacquis, including the police and judicial cooperation provisions, in March 1999.[12] Their request was approved by a Council Decision in 2000[15] and fully implemented by a Decision of the Council of the EU with effect from 1 January 2005.[16]
The EU legislative organs dealing specifically with the AFSJ affairs are:
Secretariats of both institutions feature also a related structure, the Legal Service.
The area comes under the purview of theEuropean Commissioner for Justice, theEuropean Commissioner for Equality and theEuropean Commissioner for Home Affairs. They deal with the following matters:EU citizenship; combating discrimination, drugs, organised crime, terrorism,human trafficking;free movement of people, asylum and immigration; judicial cooperation in civil and criminal matters; police and customs cooperation; and these matters in theacceding countries.[17] The relevantEuropean Commission departments are theDG Justice & Consumers and theDG Migration & Home Affairs.
In addition, other EC members supervise services and directorates-general of theEuropean Civil Service, technically not parts of AFSJ, but related to it thematically:
As many asten decentralised EU agencies have been incorporated under the AFSJ policy domain:
Three of the executive agencies established by the European Commission are also active in the domain:
There is also a related decentralised independent body:
Further two related corporate body also exists:
Other EU institutions and bodies directly involved in the domain include:
The domain has been financed by four EU funds:
There has been criticism that the EU's activities have been too focused on security and not on justice.[18][19] For example, the EU created theEuropean Arrest Warrant but no common rights for defendants arrested under it.
The first steps in security and justice cooperation within the EU began in 1975 when the TREVI group was created, composed of member states' justice and home affairs ministers.
TREVI was an intergovernmental network, or forum, of national officials from ministries of justice and the interior outside theEuropean Community framework, proposed during theEuropean Council meeting inRome, 1–2 December 1975. It was formalized in Luxembourg on 29 June 1976 at a meeting of theEuropean Council's Interior Ministers. It ceased to exist when it was integrated into the so-called Justice and Home Affairs (JHA)pillar of theEuropean Union (EU) upon the entry into force of theTreaty of Maastricht in 1993.
"TheEuropean Council adopted a proposal by thePrime Minister of the United Kingdom that Community Ministers for the Interior (or Ministers with similar responsibilities) should meet to discuss matters coming within their competence in particular with regard to law and order."
The first TREVI meeting at the level of senior officials was held in Rome where the famousTrevi Fountain is located and the meeting was chaired by aDutchman by the name of Jacques Fonteijn (English: Fountain). In some French textbooks, it is noted that TREVI stands forTerrorisme, Radicalisme, Extrémisme et Violence Internationale.[citation needed]
The creation of TREVI was prompted by several terrorist acts, most notably thehostage taking and subsequent massacre during the1972 Olympic Games in Munich, and the inability ofInterpol at that time to effectively assist the European countries in combattingterrorism. While TREVI was initially intended to coordinate effective counterterrorism responses among European governments, it slowly extended its remit to many other issues in crossborder policing between the members of the European Community. Many of the practices and a large part of the structure of the former Third Pillar traced their origins to TREVI.
The first real cooperation was the signing of theSchengen Implementing Convention in 1990 which opened up the EU's internal borders and established theSchengen Area. In parallel theDublin Regulation furthered police cooperation.[21]
TheJustice and Home Affairs (JHA) pillar was created, on the foundations of the TREVI cooperation, by theMaastricht Treaty in order to advance cooperation in criminal and justice fields without member states sacrificing a great deal of sovereignty. Before the Maastricht Treaty, member states cooperated at the intergovernmental level in various sectors relating to free movement and personal security ("group of co-ordinators", CELAD, TREVI) as well as in customs co-operation (GAM) and judicial policy. TheMaastricht Treaty established that, while reaching the objectives of the Union, and notably the freedom of movement, the member states consider the following as areas of common interest under Justice and Home Affairs:
With Maastricht, Justice and Home Affairs co-operation aimed at reinforcing actions taken by member states while allowing a more coherent approach of these actions, by offering new tools for coordinating actions. Decisions were taken by a unanimous vote of the Council without participation of theEuropean Parliament (as opposed to decisionmaking in theEuropean Community areas).
The Justice and Home Affairs pillar was organised on anintergovernmental basis with little involvement of the EU supranational institutions such as the European Commission and the European Parliament. Under this pillar the EU created the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) in 1993 andEuropol in 1995. In 1997 the EU adopted an action plan against organised crime and established theEuropean Monitoring Centre on Racism and Xenophobia (EUMC). In 1998 theEuropean Judicial Network in criminal matters (EJN) was established.[21]
The Treaty of Amsterdam transferred the areas of illegalimmigration,visas,asylum and judicial cooperation in civil matters from the JHA to the European Community pillar, while the extant part of the intergovernmental 3rd pillar was renamedPolice and Judicial Co-operation in Criminal Matters (PJCC) to reflect its reduced scope.[22] During this time further advancements were made.TheEuropean Police College (CEPOL) was also created.
The treaty was also the first legal act to introduce the concept ofarea of freedom, security and justice, stating that the EU must "maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime."[23] The first work programme putting this provision into effect was agreed atTampere, Finland in October 1999. Subsequently, the Hague programme, agreed in November 2004, set further objectives to be achieved between 2005 and 2010.[24]
TheTreaty of Nice enshrined Eurojust in the EU treaties and in 2001 and 2002Eurojust,Eurodac, theEuropean Judicial Network in Civil and Commercial Matters (EJNCC) and European Crime Prevention Network (EUCPN) were established. In 2004 the EU appointed an anti-terrorism coordinator in response to the2004 Madrid train bombings and theEuropean Arrest Warrant (agreed in 2002) entered into force.[21]
In 2005, thePrüm Convention was adopted byAustria,Belgium,France,Germany,Luxembourg, theNetherlands andSpain in the town ofPrüm inGermany, and which has been open to allmembers of the European Union, 14 of which are currently parties. Its goal has been to enable the signatories to exchange data regardingDNA,fingerprints andvehicle registration of concerned persons and to cooperate againstterrorism. It also contains provisions for the deployment of armedsky marshals on flights between signatory states, joint police patrols, entry of (armed) police forces into the territory of another state for the prevention of immediate danger (hot pursuit), and cooperation in case of mass events or disasters. Furthermore, a police officer responsible for an operation in a state may, in principle, decide to what degree the police forces of the other states that were taking part in the operation could use their weapons or exercise other powers.
In 2006, atoxic waste spill off the coast of Côte d'Ivoire, from a European ship, prompted the commission to look into legislation against toxic waste.Environment CommissionerStavros Dimas stated that "Such highly toxic waste should never have left the European Union". With countries such as Spain not even having a law against shipping toxic wasteFranco Frattini, theJustice, Freedom and Security Commissioner, proposed with Dimas to create criminal sentences for "ecological crimes". His right to do this was contested in 2005 at the Court of Justice resulting in a victory for the commission. That ruling set a precedent that the commission, on a supranational basis, may legislate in criminal law. So far though, the only other use has been theintellectual property rights directive.[25] Motions were tabled in the European Parliament against that legislation on the basis that criminal law should not be an EU competence, but were rejected at vote.[26] However, in October 2007 the Court of Justice ruled the commission could not propose what the criminal sanctions could be, only that there must be some.[27]
Some of the Prüm Convention provisions, falling under theformer third pillar of the EU, were later subsumed into the police and judicial cooperation provisions ofEuropean Union law by a 2008 Council Decision,[28][29] commonly referred to as thePrüm Decision. It provides for Law Enforcement Cooperation in criminal matters primarily related to exchange of fingerprint, DNA (both on a hit no-hit basis) and Vehicle owner registration (direct access via theEUCARIS system) data. The data exchange provisions are to be implemented in 2012. The remaining provisions of the Convention falling under the former third pillar are not yet adopted into EU law.
The 2009Treaty of Lisbon abolished the pillar structure, reuniting the areas separated at Amsterdam. Both the extant intergovernmental areas (the PJCC) and those transferred from JHA to the Community were once again reunited to form a singlearea of freedom, security and justice of the reformed European Union, thus turning the concept into a policy domain entirely under both the community method decisionmaking and the judicial purview of theCourt of Justice, with the relevant legislation being thereafter made in any case through co-decision of theCouncil voting with qualified majority and theEuropean Parliament. TheCharter of Fundamental Rights also gained legal force and Europol was brought within the EU's legal framework.[30] As the Treaty of Lisbon came into force, theEuropean Council adopted theStockholm Programme to provide EU action on developing the area over the following five years.[24] With the strengthened powers under Lisbon, the secondBarroso Commission created a dedicatedcommissioner for justice (previously combined with security under one portfolio) who is obliging member states to provide reports on their implementation of the Charter of Fundamental Rights. Furthermore, the commission is putting forward proposals for common rights for defendants (such as interpretation), minimum standards for prison conditions and ensure that victims of crime are taken care of properly wherever they are in the EU. This is intended to create a common judicial area where each system can be sure of trusting each other.[31]
The border agency Frontex, which is responsible for overseeing the security of the EU's external borders, has been upgraded.[32] This reformed body, now called the European Border and Coastguard Agency, involves having a pool of armed guards, drawn from different EU member states, that can be dispatched to EU countries at three days' notice.[33] The European Border and Coastguard Agency functions more in a supervisory capacity.[34] The border agencies of host countries still retain day-to-day control,[35] and the personnel from the new agency are required to submit to the direction of the country where they are deployed.[36] However, interventions happen sometimes against the wishes of a host country.[37] They include instances such as "disproportionate migratory pressure" occurring on a country's border.[38] For this intervention to happen, the new border agency has to gain consent from the European Commission.[39] The border guards are allowed to carry guns.[40] The agency is also able to acquire its own supply of patrol ships and helicopters.[41]
The European Union's growing role in coordinating internal security and safety policies is only partly captured by looking at policymaking within the area of freedom, security and justice. Across the EU's other (former) pillars, initiatives related to food security, health safety, infrastructure protection, counter-terrorism and energy security can be found. New perspectives and concepts have been introduced to examine the EU's wider internal security role for the EU, such as the EU's "protection policy space"[42] or internal "security governance".[43] Furthermore, EU cooperation not covered by a limited lens of the Area of Freedom, Security and Justice—namely EU cooperation during urgent emergencies[44] and complex crises[45]—has received a growing amount of attention.
