Freedom, security and justice in the European Union : internal and external dimensions of increased cooperation after the Lisbon Treaty

As the European Union has evolved, it has also begun to address policy questions which are closer to the very heart of the state. From cooperation in Justice and Home Affairs, originally conceived as the third pillar of European cooperation, has emerged the Area of Freedom, Security, and Justice (AFSJ). A unique aspect of policy in this area is the desire to integrate the internal and external dimensions of this policy area. One of the tensions in this policy area has been balancing the protection of fundamental rights and increasing security. The first part of this book focuses on the institutional relations of policymaking in AFSJ, both within member states and between member states, in particular the issues of national executive control, national parliamentary scrutiny and peer review across the member states with regard to AFSJ. The second part focuses on specific policy areas which are part of AFSJ. Two chapters highlight the tension found in this policy area between security and human or fundamental rights, the first related to data retention and the second on policing external borders. The final two chapters are concerned with data exchange among European countries and transatlantically with the US, and the interface between AFSJ and the Common Foreign and Security Policy (CFSP). The chapters contained in the book were presented at the Dutch Ministry of the Interior and Kingdom Relations and the Dutch national parliament (Tweede Kamer), making it of interest to scholars and practitioners alike. Contents 5 1 Introduction: Freedom, Security and Justice After Lisbon 6 1...A Brief Overview of Governancegovernance Changes in the Area of Freedom, Security and Justice After the Lisbon TreatyLisbon Treaty 8 2...Comparison with Other Policy Areas 13 3...Overview of the Book 14 2 New Parliamentary Practices in Justice and Home Affairs: Some Observations 17 Abstract 17 1...Introduction 18 2...The Coordination Quagmire of JHA 18 3...Introducing Parliaments in JHA 19 4...Indirect Access to the EU Arena: Scrutiny of Governments 21 5...Direct Access: The Innovations of ‘Lisbon’ 22 6...The Dutch Case 24 6.1 Losing Consenthellip 24 6.2 hellipWinning Scrutiny 25 6.3 hellipAnd Early Involvement 27 7...Knowledge and Information 28 8...Selective Application of Instruments 29 9...Interparliamentary Cooperation 30 10...To Conclude 31 References 32 3 Non-Binding Peer Evaluation within an Area of Freedom, Security and Justice 33 1...Introduction 33 2...The AFSJ, SchengenSchengen and Peer Reviewpeer review 35 3...The General EU Infringement Procedure and Peer Review According to Article 70 TFEU 37 3.1 Article 70 TFEU 37 3.2 The General EU Infringement Procedure 40 3.3 The Procedures in Comparison 41 4...Analyzing Peer ReviewPeer Review as ‘Competence’ 45 4.1 What is at Stake for the Member States? 45 4.2 The Role of the Commission 48 5...Analysing Peer ReviewPeer Review as Cooperation 49 6...Conclusions 51 4 Redefining the Relationship Between Security, Data Retention and Human Rights 53 Abstract 53 1...Introduction 53 2...Relevant Legal Changes 55 3...What were the Aims of the Data Retention Directive? 57 4...What Happened in the Past Years? 60 4.1 Transposition Process 60 4.2 Involvement of the Court of Justice of the European UnionCourt of Justice of the European Union 61 4.3 What were the National Courts’ Concerns? 62 4.4 Commission Evaluation Report: Have the Directive’s Objectives Been Achieved? 66 4.4.1 Costs and Length of Retention 67 4.4.2 Purpose 67 4.4.3 Access to Retained Data 68 4.4.4 Is Data Retention Necessary? Evidence Versus Anecdotal Evidence 69 4.5 Commission Action Following the Evaluation Report 70 4.6 Reaction to the Commission’s Proposal for Review 72 5...Time for Redefinitionredefinition? 74 6...Can Redefinitionredefinition Take Place? 77 5 Protecting the EU’s Borders from hellip Fundamental Rights? Squaring the Circle Between Frontex’s Border Surveillance and Human Rights 79 Abstract 79 1...Introduction 80 2...What Happens at Europe’s Southern Bordersborders? 83 2.1 Frontex’s Far-reaching Interpretationinterpretation of Border Surveillance 83 3...The Legal Framework Governing FrontexFrontex Border Surveillance: The Genesis and Fate of Decision 2010/252/EU Supplementing the SBC 88 4...Which Boundaries for Border Surveillance? 92 4.1 The EU’s Fundamental Rightsfundamental rights Framework for Border Surveillance 92 4.2 The Outer Boundaries of EU Border Surveillance: The Position of the Council of Europe and of the Strasbourg Court on Push-Back Operations 94 5...Frontex’s Move Toward Fundamental Rightsfundamental rights: Dismantling Fortress Europe? 98 6...How to Square the Circle Between Border Surveillance and Human Rights at the Bordersborders? A Proposal 101 6 The Prüm Process: The Effects of Enhanced Cooperation within Europe and with the United States in Combating Serious Crime 104 Abstract 104 1...Introduction 105 2...Differentiated Integration in the Area of Freedom, Security and Justice 106 3...The Prüm TreatyPrüm Treaty: Enhancing Cooperation Outside the EU Framework 108 4...Other EU Member States Signing the Treaty 111 5...‘‘Prüm’’ Becomes EU Law 112 6...The Proliferation of ‘‘Prüm-Like’’ Agreements: A Case Study on the US-Austrian Negotiations 115 7...Concluding Remarks 120 7 The Interface Between the Area of Freedom, Security and Justice and the Common Foreign and Security Policy of the European Union: Legal Constraints to Political Objectives 121 Abstract 121 1...Introduction 121 2...EU External Action After Lisbon: Between Delimitation and Consistency 124 3...The Adoption of Restrictive Sanctions Against Individuals in the Pre-Lisbon Constellation: A Pragmatic Approach 126 4...A Double Explicit Legal Basis for the Adoption of Restrictive Measures Against Individuals After Lisbon 130 5...Drawing the Line Between Articles 75 and 215(2) TFEU: First Guidelines of the Court of Justice 132 6...Conclusion 135 Short Biographies of the Editorsand Contributing Authors 138 Index 142 Front Matter....Pages i-v Introduction: Freedom, Security and Justice After Lisbon....Pages 1-11 New Parliamentary Practices in Justice and Home Affairs: Some Observations....Pages 13-28 Non-Binding Peer Evaluation within an Area of Freedom, Security and Justice....Pages 29-48 Redefining the Relationship Between Security, Data Retention and Human Rights....Pages 49-74 Protecting the EU’s Borders from ... Fundamental Rights? Squaring the Circle Between Frontex’s Border Surveillance and Human Rights....Pages 75-99 The Prüm Process: The Effects of Enhanced Cooperation within Europe and with the United States in Combating Serious Crime....Pages 101-117 The Interface Between the Area of Freedom, Security and Justice and the Common Foreign and Security Policy of the European Union: Legal Constraints to Political Objectives....Pages 119-135 Back Matter....Pages 137-146