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EU Migration Policy: Management or Militarization?
Specific objective: the creation of an area of freedom, security, and justice (FSJ)
Opt-out possibilities and other special arrangements applicable to the area of FSJ
The ToL has not eliminated the differing participation of the Member States in measures relating to the area of FSJ. On the one hand, it allows opt-out possibilities and, on the other, facilitates “enhanced co-operation.”
The pre-ToL opt-outs are respected and new ones have been granted to the UK, Ireland, and Denmark. Under Protocol 21 attached to the Treaties “On the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security, and Justice,” the opt-out possibilities apply to the entire area of FSJ. Protocol 22 gives the same right to Denmark. As a result, each of the UK, Ireland, and Denmark is entitled to decide which pieces of legislation relating to the area of FSJ it wishes to adopt on a case-by-case basis.
Those three Member States may decide to opt-in during the decision-making stage or later when the measure has already been adopted. Protocol 21 details the consequences of non-participation of the UK and Ireland (the same applies to Denmark under Protocol 22) in the amendment of measures in the actual adoption of which either of the UK, Ireland and Denmark has decided to participate, and therefore is bound by the measure. Under Article 4a of Protocol 21 if the Council determines that non-participation by the UK and Ireland (this also applies to Denmark) makes the existing measure “inoperable,” it may, by QMV, urge those Member States to indicate their desire to participate within two months.
If the invitation to participate is not accepted by each of the UK, Ireland, or Denmark, after the expiry of that period or at the entry into force of the amending measure, whichever is later, the measure will cease to be binding for a non-participating MemberState. Under Article 4a (3) of Protocol 21 the Council may, by QMV, decide that the non-participating MemberState, bears the “direct financial consequences . . . necessarily and unavoidably incurred” resulting from the cessation of its participation in the existing measure. This solution, on the one hand, puts pressure on a non-participating State to participate in a measure, although that State cannot be forced to participate, but on the other, ensures that participating Member States can move forward by ejecting a non-participating MemberState from the existing measure. Additionally, a 43 non-participating MemberState may be required to pay costs which are necessarily and unavoidably incurred as a direct consequence of its cessation of participation.
The opt-out possibilities from the Schengen system for the UK, Ireland, and Denmark have been amended to match those contained in Protocol 21 for the UK and Ireland and Protocol 22 for Denmark. As a result, these Member States have complete freedom to decide whether to participate in the adoption of a new measure and in the amendment of a measure in which they have participated. The consequences of non-participation in the amendment of an existing measure are the same as under Protocol 21 for the UK and Ireland and Protocol 22 for Denmark.
Protocol 19 “On the Schengen Acquis Integrated into the Framework of the EU” also deals with the position of States which participate in the Schengen acquis but which are not Member States of the EU (see section 2.4.4.2). Those countries, at the time of writing, are: Iceland, Norway, and Switzerland. They can participate in Council meetings when it deals with Schengen items and express their views on them but have no voting rights if the Council decides to proceed to formal adoption of proposed measures. They are bound by such measures.
The definition of the area of FSJ
The term “area” is flexible enough to encompass the following policies: asylum, immigration, border controls, judicial co-operation in civil matters, and judicial and police co-operation in criminal matters.
There is no definition of the concepts of “freedom,” “security” and “justice”. With regard to “freedom” Article 3(2) TEU makes reference to freedom of movement of persons thus ensuring that EU citizens are able to move across borders within the area without being subject to border controls. Further, paragraph 6 of the 1998 Vienna Action Plan, which was the first programme document adopted by the Council with a view to creating the area of FSJ, specifies that “freedom” means more than freedom of movement, it includes “freedom to live in a law-abiding environment in the knowledge that public authorities are using everything in their individual and collective power (nationally, at the level of the Union and beyond,) to combat and contain those who seek to deny or abuse that freedom” ([1999] OJ C19/1).
Accordingly, the concept of freedom is linked to the concept of “security” in that it includes freedom from threats posed by criminals. It can be argued that the term “freedom” implicitly includes all freedoms which have been conferred on EU citizens, e.g. the freedom to work in a host MemberState, the freedom to provide services, and the freedom to establish a business in a host MemberState.
The concept of “security” has similar meaning as under national law. It means that the EU shall ensure that EU citizens enjoy a high level of internal security, i.e. freedom from crime. However, Article 72 TFEU assigns to the Member States the main responsibility for the maintenance of law and order and safeguarding of internal security and specifies that “national security remains the sole responsibility of each MemberState.” As a result, any action at EU level will be complementary and subject to the principle of subsidiarity.
The concept of “justice” was referred to in the Conclusions of the Tampere Presidency as aiming at ensuring that EU citizens “are not discouraged or prevented from exercising their rights”71 by divergences and differences between national justice systems. The “justice” dimension of the area of FSJ is based on judicial co-operation between Member States. In order to remove obstacles resulting from differences in national justice systems, the EU must ensure that either on the basis of the principle of mutual recognition or by means of harmonizing legislation, judgments and other similar decisions in civil and criminal matters given in one Member State are recognized in another Member State and that EU citizens have access to justice in respect of matters with a cross-border dimension.
EU programmes implementing measures aimed at the creation of the area of FSJ
The European Tampere Council (October 1999) set an ambitious agenda for the creation of the area of FSJ. It adopted a five-year programme, called the Tampere Programme, defining the priority areas, specific objectives and a timetable for implementing these objectives. The Council set a “scoreboard” by which progress in these priority areas was to be assessed. In fact the “scoreboard” was regularly updated to monitor implementation of the relevant measures.
The Tampere Programme expired in June 2004.72 Subsequent programmes have been based on the principles established by the Tampere programme.
For 2004–09 The Hague Programme was agreed by the European Hague Council in November 2004. The Commission was given one year to prepare proposals for concrete actions and a timetable for their adoption and implementation. On 10 May 2005 the Commission submitted it’s Five Year Action Plan for Freedom Justice and Security.73 It identified 10 key areas for priority action and made concrete proposals for action, with a timetable for their adoption and implementation.74
The Hague programme expired in 2010 and was replaced by the Stockholm programme, adopted by the European Council in December 2009. The Stockholm programme contains 170 initiatives to be translated into concrete proposals, which if adopted, should be implemented by the end of 2014. The Commission has prepared 10 proposals which cover all aspects of the area of FSJ, i.e. from proposals on fighting cybercrime, border control, and asylum, to proposals concerning the choice of law in divorce proceedings for a couple with differing nationalities.75
71. Bull EU, 10-1999, para 28.
72. For the assessment of the Tampere Programme by the Commission see: COM (2004) 4002 final.
73. See: http://ec.europa.eu/justice_home/news/information_dossiers/the_hague_priorities/index_en.htm (accessed 04/06/2013).
74. For an assessment of the Hague programme see: Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions – Justice, freedom and security in Europe since 2005: an evaluation of The Hague programme and action plan {SEC(2009) 765 final} {SEC(2009) 766 final} {SEC(2009) 767 final}
75. See MEMO/10/139.
