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Institutions of the European Union

Institutions of the European Union (4th edn)

Dermot Hodson and John Peterson
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p. 28312. Police and judicial cooperation: Integrating security interestslocked

p. 28312. Police and judicial cooperation: Integrating security interestslocked

  • Andrew Geddes


This chapter examines the extensive, diverse, and politically contentious range of issues that usually fall within the domain of interior or justice ministries in the European Union member states. EU member states seek to work together on issues such as asylum, refugee protection, migration, border controls, police cooperation, and judicial cooperation. The chapter first explains the meaning of ‘security’ before discussing formal and informal transgovernmentalism as well as partial communitarization, along with the five-year policy plan drafted by the interior ministers of the member states in Tampere, Finland, specifying their objectives in the area of internal security policy and cooperation. It also explores three areas in which there has been policy development in the Area of Freedom, Security, and Justice (AFSJ): anti-terrorism; migration, asylum, and border controls; and the European arrest warrant. The chapter concludes with an assessment of the implications of the Lisbon Treaty for EU’s internal security.


European Union (EU) member states seek to work together on issues such as asylum, refugee protection, migration, border controls, police cooperation, and judicial cooperation. These were once seen as the prerogative of member states; indeed, they are defining features of states’ identities as sovereign. This chapter shows how a complex p. 284process of incremental institutional change established new ways of working on internal security issues and reconfigured the strategic perspective from which these issues are viewed. It shows too how this cooperation has been severely tested by the refugee crisis. In 2015, more than 1 million people crossed the Mediterranean to enter the EU, with 3,700 people reported dead or missing. Of these refugees and migrants, 845,000 moved through Greece. The majority moved because of conflict in the Middle East, particularly in Syria. The refugee crisis was linked to a political crisis for EU institutions and leaders as serious questions were raised about the content and the viability of key components of the EU’s approach to security and human rights. From being a policy arena that was not even mentioned in the 1957 Treaty of Rome or 1986 Single European Act (SEA), internal security within an ‘area of freedom, security, and justice’ (AFSJ) is now a key EU priority. This chapter pinpoints key developments, specifies institutional roles, and explores the relationships over time between changing conceptualizations of security and institutional developments.


European cooperation on internal security within the AFSJ is firmly embedded as a key priority of the EU. Significant policy developments in areas such as policing, judicial cooperation, border controls, migration, and asylum have been accompanied in a relatively short period of time by institutional development, transformation, and consolidation. Policy and institutional development signify movement into areas of ‘high politics’ that impinge directly on state sovereignty. Institutional change has also been informed by reconceptualizations of internal security that have played a powerful role in framing institutional and policy developments. This chapter connects policies, institutions, and ideas over time to analyse the extensive, diverse, and politically contentious range of issues that usually fall within the domain of interior or justice ministries in the member states. They also tend to be seen as closely related to national sovereignty and reside within the domain of the executive branches of national governments, with tendencies towards seclusion and secrecy in decision style. This chapter shows how an institutional style has developed that is ‘sectoral’, in that it draws from the internal security branches of the member states with some involvement by EU institutions. The result has been the creation of ‘transgovernmental’ interactions at EU level that have reshaped the settings within which questions of internal security are both conceptualized and acted upon.

There was no mention of internal security in the Paris and Rome Treaties (1951 and 1957, respectively) or in the 1986 Single European Act (SEA). There was, though, ‘informal’ cooperation between states outside the Treaty framework. It was not until 1993, when the Maastricht Treaty created the justice and home affairs p. 285(JHA) pillar, that there was formal reference to internal security, including immigration, asylum, border controls, and judicial and police cooperation. In 1999, Article 1(5) of the Amsterdam Treaty proclaimed that the EU should be maintained and developed ‘as an area of freedom, security and justice … within which the free movement of persons is assured’ and with ‘appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime’.

Key developments post-Lisbon have been the full application of Community decision rules and institutional processes to almost all internal security matters, and the testing of these rules and processes by the refugee crisis. The Lisbon Treaty also makes the Charter of Fundamental Rights binding on member states. The Czech Republic, Poland, and the United Kingdom (UK) (pre-Brexit) secured derogations from the scope of the Charter of Rights. This means that citizens of these countries cannot use the Charter to challenge rights issues in their courts if the basis for their challenge is rights granted to them as EU citizens within the Charter. If they are to issue a challenge, then they must use national laws. Neither can the Charter be used to introduce new rights into the national laws of these countries.

Post-Lisbon institutional changes also sees the JHA portfolio within the Commission separated into ‘home affairs’ and ‘justice’ roles. That said, as will be seen, this area of policy does possess a complex and byzantine quality, as evidenced, for example, by Ireland’s opt-out from the passport-free travel provisions of the Schengen zone. Box 12.1 provides a timeline of key developments.p. 286

Box 12.1 Timeline of key developments in police and judicial cooperation


Naples Convention establishes customs cooperation to tackle fraud


Trevi is initially a response to terrorist organizations, but its remit was widened to tackle internal security issues seen as arising from single market integration


Schengen Agreement, initially between five member states (Belgium, France, Germany, Luxembourg, and the Netherlands), then becomes the laboratory for ‘compensating’ internal security measures in the single market


SEA proposes a Europe with free movement for people, services, goods, and capital, and provides a further impetus to informal cooperation between member states outside of the formal Treaty framework


Ad Hoc Group on Immigration established to explore the migration and asylum implications for non-EU nationals of free movement provisions


Group of Coordinators established to coordinate the various informal bodies and groups dealing with internal security issues


Maastricht Treaty formalizes transgovernmental cooperation by creating the JHA pillar


Amsterdam Treaty creates a new Title IV dealing with free movement, migration, asylum, and border controls, while leaving judicial and police cooperation in a recast judicial and police cooperation (JPC) pillar


Tampere Programme devised by national interior ministers and sets an ambitious five-year agenda for internal security development


Hague Programme provides a further five-year plan for policy development within which increased emphasis is laid on the ‘external dimension’—that is, cooperation with non-member states


Lisbon Treaty provides for full application of Community decision rules to almost all internal security matters and makes binding the Charter of Fundamental Rights to inform application of the internal security acquis


Stockholm Programme lays down a further five-year plan (2010–14) that proposes, for example, a common asylum policy and a strong focus on the ‘external’ dimension of internal security


Strategic Guidelines for Justice and Home Affairs cover the period to 2020 and focus mainly on consolidation of existing rules

This chapter addresses two related sets of questions that link institutions, policies, and ideas. First, what impelled the development of EU cooperation on internal security? Why have developments occurred at some points in time and not at others? And what impact have changes in the conceptualization of security and insecurity had on the development of policy? The second set of questions focus on institutional form, and examines the processes that have developed and their response to challenges, such as the refugee crisis.

The meaning of ‘security’

Central to the analysis that follows is the relationship between institutions and ideas. To understand EU internal security policy, it is important to probe the meaning of ‘security’. Various qualifiers are appended to the term ‘security’, such as ‘internal’, ‘external’, ‘state’, ‘national’, ‘international’, ‘human’, and ‘societal’—but none help us to understand the term itself. Perhaps the EU itself can help in a quest for clarity by providing a definition? There is a strong commitment to develop the EU as an AFSJ. But even in key EU documents such as the 2014 Strategic Guidelines for Justice and Home Affairs (which mapped the EU internal security agenda for the period 2015–20), the meaning of the term can be elusive. The Strategic Guidelines recognize various threats that are seen to confront the member states, such as serious and organized crime, corruption, human trafficking, and people smuggling, and discuss the need to develop ‘coherent’ policies, p. 287while also recognizing the close links between ‘internal’ and ‘external’ policies, and thus the importance to EU internal security policy of relations with non-member states. The Guidelines identify internal security as a key EU priority, and as a means to protect citizens and offer effective rights to people inside and outside the EU.

Security is often represented in documents such as the Strategic Guidelines as a key demand made by EU citizens. The development of action on internal security can then be a means for the EU to acquire legitimacy in the eyes of its citizens by taking on this role and responding to the concerns of their citizens. There is a supply side in this particular ‘market’ too, because institutions, organizations, and processes associated with EU action may themselves have helped to create cultures of insecurity, uncertainty, and risk that then form the basis for arguments for intensified policy action. The refugee crisis provoked an intensification of efforts to work with non-EU members, particularly Turkey, to enhance border controls and to try to stop movement of people from areas affected by conflict in the Middle East, particularly Syria, towards Europe.

These definitional ambiguities could also be seen as creating political opportunities as various actors seek to impose their preferred understandings of security challenges. This way of thinking connects issue ‘framing’ to mobilizations, and then to the types of policy and institutional response that have developed. Such a constructivist perspective takes ideas seriously in relation to institutional development.

Finally, we need to think about the effects of policy development over time. Decisions about EU internal security cooperation and policy have been made at particular points in time. We can also assess the effects of cooperation over time and the pace, or tempo, of institutional development. By doing so, it is possible to assess the influence of initial decisions about institutional form on later decisions and to assess the ways in which—over time—new EU-level institutional venues have been created, and then have further reshaped ideas about security and insecurity in the EU. A theoretical observation can also be made if we extend this thinking about the effects of cooperation over time. If it is the case that understandings of security and thinking about strategic challenges have been affected by cooperation, then it would also seem to be the case that national preferences can be shaped and reshaped by cooperation at the EU level as a consequence of interactions over time and the emergence of new, shared understandings of European internal security. In such circumstances, preferences are not exogenous to the process, as liberal intergovernmentalists argue; rather, they can be defined and redefined as a result of interaction.

Executive dominance

From its early origins, cooperation on internal security has centred on liaison and interaction between national interior and justice ministries, as well as national security agencies such as police forces. This configuration pinpoints the predominant position of the executive branch of national government and associated agencies. The Commission did p. 288seek to play a role in policy development, but found this effort difficult because it was confronted by a weak legal basis for its involvement. Even in the late 1990s, the Commission representatives would leave the room when member states turned their attention to the Schengen area, because it was an issue from which the Commission was excluded. Supranational institutions such as the Commission, Court of Justice, and European Parliament (EP) were effectively excluded from the development of the Schengen system in the 1980s and 1990s. This exclusion is significant because these developments went on crucially to inform the shape and form of cooperation after the Schengen acquis was brought into the EU Treaty framework by the Amsterdam Treaty.

We can also specify a little more clearly how cooperation worked and assess its implications. There were actually very specific forms of cooperation that were ‘sectoral’—that is, focused on a range of issues linked to internal security, and involving ministers and officials from mainly interior ministries and security agencies. What this specificity means is that distinct patterns of cooperation and working methods have evolved over time. Wallace and Reh (2015) have identified internal security as an example of ‘intensive transgovernmentalism’, whereby functional interdependence exposes a governance dilemma as member states confront ‘transboundary’ policy problems with which they would struggle to deal acting alone.1

Being ‘transboundary’ does not determine the shape or form that cooperation on internal security might take. Environmental issues are also transboundary and the EU has made much more significant steps towards common policies in this arena than it has in the area of internal security. By contrast, the EU has preferred to move more tentatively in the arena of internal security because of the political sensitivity of immigration, asylum, policing, and judicial cooperation, which have a strong relation to understandings of national sovereignty and to the legitimate authority of national governments that are concerned to be seen to ‘deliver’ security to their citizens.

The analytical insight that can be garnered from the preceding discussion is that, instead of being locked into a supranational–intergovernmental dichotomy, the focus on transboundary problems and transgovernmental institutions provides a means of exploring the ways in which functional interdependencies can generate pressures for action. But it also shows that these pressures need not translate into a unique template for cooperation and/or policy development; rather, there are distinct policy styles and ways of working in areas as diverse as the environment and internal security that play a strong role in shaping the scope, form, and content of action.

Informal transgovernmentalism

The Trevi Group

Early traces of internal security cooperation can be found in the Naples Convention of 1967, agreed between the six founding European Economic Community (EEC) member states (‘the Six’) to deal with customs cooperation. This cooperation was p. 289closely linked to the common market because it sought to combat infringements of national customs legislation. Cooperation moved to a different level when member states sought greater coordination in their responses to domestic groups defined as terrorist organizations, such as Basque separatist group ETA (Euskadi ta Askatasuna) in Spain, the Red Army Faction in West Germany, the Red Brigades in Italy, and the Irish Republican Army (IRA) in Northern Ireland. National governments sought to cooperate within the Trevi Group, which was set up in 1976 by the then nine member states to promote cooperation between police, security, and intelligence agencies. There are various explanations given for the name ‘Trevi’: one is that it is an acronym derived from its focus on Terrorisme, radicalisme, extrémisme et violence internationale; another is that it is named after the Trevi Fountain in Rome, near which the group first met. Whichever is the case, the key point is that Trevi created patterns and habits of cooperation on internal security to highlight the importance of regular interactions that link internal security officials in member states.

The political leadership and direction for Trevi was set by meetings every six months of interior ministers from the nine member states. This kind of political steering by national ministers is a key feature of EU decision-making, but cannot provide policy and operational details. Consequently, to prepare for these ministerial meetings, senior officials from each member state would meet in May and November—that is, one month before the meeting of ministers. There was also another layer beneath this senior official level, because the detailed groundwork for these higher-level meetings was actually done in working groups. Three such groups were created in 1976. So-called Trevi I focused on anti-terrorism; Trevi II, on police training, including measures to combat football-related violence. A third group dealing with civilian air travel, Trevi III, was largely inert and was redefined in 1985 to focus on serious organized crime, after which it became more active. Two other groups (nuclear safety and civil emergencies) were created, but never actually met. Associated with the work of Trevi in the sense of being kept informed about developments were the ‘friends of Trevi’: Austria, Canada, Finland, Morocco, Norway, Sweden, Switzerland, and the United States (US).

Early cooperation centred on anti-terrorism, police training, and serious organized crime. Methods of cooperation emerged outside of the formal Treaty framework and were ‘transgovernmental’, with actors defined by their operation in the field of internal security policy meeting frequently and developing patterns of working. These interactions qualify the idea of a supranational versus intergovernmental dichotomy positing either supranational institutions or the member states, respectively, as being in the driving seat. Transgovernmental interactions are ‘sectoral’ in that they focus on the specialized function of internal security questions and involve groups of people—officials from national and EU institutions plus people from security agencies—who meet regularly to exchange information and ideas, and may not be directly under the control of cabinets and prime ministers. This distinction does not mean that officials act contrary to the policies or interests of their governments, but can mean that they develop common understandings that shape how p. 290problems are understood in the first place, which can then influence how responses develop. Working groups provided a base for interaction and the development of shared understandings between national officials, which, in turn, helped to reshape the context within which planning and decision-making occurred. Member states did not cede responsibility to common institutional processes, but made evident their willingness to work together.

The impact of single market integration

Did the SEA plan to create a European single market—defined as an area without internal frontiers within which people, services, goods, and capital could move freely—also have the effect of impelling cooperation on internal security? There are important linkages between economic integration and internal security cooperation, but there was also a determination that internal security cooperation would occur outside of the Treaty framework, in transgovernmental forums with limited involvement by supranational institutions.

The key development during the 1980s occurred outside of the Treaty framework and prior to the SEA. In June 1985, the Schengen Agreement was signed by Belgium, France, (West) Germany, Luxembourg, and the Netherlands in a riverboat on the River Mosel near to the town of Schengen in Luxembourg. The location was symbolic, because it is where the borders of Luxembourg, Germany, and France meet. The Schengen Agreement marked an ambitious move by five EC member states with a long-standing commitment to deeper political integration. The Schengen Agreement provided for the abolition of border controls between participating states, common rules on migration, asylum, and visas, and the creation of a database—the Schengen Information System (SIS)—to bring together information held in national databases on individuals and property. In 1990, the Schengen Implementing Convention, agreed by the same five states, sought to effect these agreed measures. Monar (2001) has argued that Schengen provided a ‘laboratory’ for the member states, demonstrating to them the internal security implications of free movement. In May 2005, Austria, Belgium, France, Germany, Luxembourg, the Netherlands, and Spain reached agreement in the Prüm Treaty to step up cooperation in tackling cross-border crime, illegal immigration, and terrorism, by providing reciprocal access to the DNA profiles, fingerprints, and vehicle registration data of participating states (Grabbe 2000; Pastore et al. 2006). The Prüm Treaty was signed before the Lisbon Treaty’s provisions for ‘enhanced cooperation’ came into effect. But Prüm (as Schengen did before it) foreshadowed the enhanced cooperation under which a third or more of EU member states can pursue cooperation as long as it does not discriminate against other member states, furthers Treaty objectives, and is not an area that falls within the EU’s exclusive competence.

The Amsterdam Treaty imported the Schengen acquis directly into the EU. This move points towards the importance of secluded and secretive venues outside of the Treaty framework for the development of measures that are then ‘imported’ to form p. 291part of the EU acquis. By 1997, when the Amsterdam Treaty was agreed, all member states except Ireland and the UK had signed the Schengen Agreement.

Informal transgovernmental cooperation in the 1980s

Single market integration also affected the Trevi Group, which initially focused on terrorism and police training. Over time, its role was developed in light of the creation of the single market and the security issues that were seen to be arising as a result of this deeper level of economic integration, which would require the dismantling of internal frontiers. The ‘Trevi 92’ group worked with an ad hoc group on immigration (created in 1986) to consider the security implications of single market integration. A group of coordinators was established in 1988, consisting of senior officials from each member state, which produced the Palma document that detailed the internal security measures that were seen as necessary to ‘compensate’ for single-market liberalization.

The ad hoc group on immigration drafted the Dublin Convention (1990), which is the framing document of the European asylum system, and which created key ideas and approaches that have informed policy development since. The right to asylum is protected by the Geneva Convention of 1951, Article 1 of which seeks to protect anyone who:

… owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

At the core of the Dublin system is the idea that an asylum application be made in the first country that is entered by the applicant. Any decision made in this first country of entry is final and binding for other member states. This rule means that the European asylum system is supposed to be a ‘one-stop’ system designed to prevent ‘asylum shopping’, with applicants moving from one member state to another (Kaunert and Léonard 2012). In the face of large-scale flows from Syria, the German government stated that it would consider asylum applications from Syrians irrespective of where they entered the EU. This decision led hundreds of thousands of people to embark on journeys across south-east Europe in an attempt to reach Germany. The decision also undermined the Dublin asylum system because Germany was prepared to consider the claims of applicants that had arrived in other EU member states in which their claims technically should have been made. The Eurodac system—that is, the European fingerprint database—supports implementation of the Dublin Convention (and its successor, the Dublin II Regulation of 2003). These formed part of the Common European Asylum System developed by 2003 and then further revised through common EU measures by 2013 (Monar 2014).

p. 292The context for the development of the Dublin system was the increase in asylum that occurred in the aftermath of the end of the Cold War, particularly to Germany. As with the Syrian refugee crisis, we see concerns about the sharing of responsibility, but also a lack of solidarity between member states. In both the early 1990s and in 2014–15, Germany was concerned that other member states were not ready to embrace the sharing of responsibility or of solidarity through, for example, the distribution of asylum seekers and refugees in a more proportional way across the EU.

Formalized transgovernmentalism

The Maastricht Treaty and the challenges of a wider Europe

The end of the Cold War provided further impetus to the development of EU internal security cooperation. We also begin to see, in the late 1980s and early 1990s, how security issues were redefined, with a move from the state security framework that had prevailed during the Cold War towards a new focus on societal security and associated ‘threats’, such as immigration, asylum, and transnational organized crime, which also cut across the traditional distinction between ‘internal’ and ‘external’ security. Institutional form and decision-making processes were heavily influenced by the patterns of interaction and cooperation created in the 1970s, and by the key role played in these by interior ministries and internal security agencies.

The 1990s saw some fairly apocalyptic predictions of large-scale migration or rampant organized crime from Eastern Europe. Some argued that as many as 25 million people might move from East to West, although the actual number was about 10 per cent of that figure (Codagnone 1999). The key point is that these forecasts of the potential scale of the threat or challenge had important effects on perceptions of internal security and were used as a rationale for strengthened EU-level action to deal with these perceived threats.

The institutional response was the JHA pillar of the Maastricht Treaty. This step was a compromise measure that sought to reconcile states that were firmly opposed to supranational action on issues such as migration and asylum, such as the UK, with those member states, such as Belgium, France, Germany, and the Netherlands, which were more open to the idea of common policy-making on such issues at EU level. The intergovernmental JHA pillar allowed member states to cooperate in nine areas of ‘common interest’ (see Box 12.2)—that is, areas in which common policies were to be developed. There would also be limited involvement by supranational institutions, with the Commission only loosely associated with policy development, and the EP and Court of Justice largely excluded.

The Maastricht Treaty brought together within the JHA pillar a variety of issues, some of which were issues on which member states had been working together since the late 1960s. It formalized this cooperation, but did so in a way that severelyp. 293

Box 12.2 Areas of ‘common interest’ in Maastricht’s JHA pillar

Asylum policy

Border controls

Immigration policy, including rules on entry, residence, and movement, as well as family reunion and access to employment by nationals of non-EU member states, or third-country nationals (TCNs) (It also covered unauthorized immigration, residence, and work by TCNs.)

Combating drug addiction

Combating fraud

Judicial cooperation in civil matters

Judicial cooperation in criminal matters

Customs cooperation

Police cooperation for preventing and combating terrorism, unlawful drug trafficking, and other serious forms of international crime

(This also included customs cooperation, in connection with the organization of a Union-wide system for exchanging information within a European police office—that is, Europol.)

limited involvement by supranational institutions, and also placed constraints on legal and political accountability at either national or EU levels (Geddes 2008).

Authority was delegated to a complex five-tier structure comprising the JHA Council, the Committee of Permanent Representatives (Coreper), the K4 Committee of senior officials (named after the relevant Treaty Article), steering groups, and working groups. This set-up was later amended to a four-tier structure during the UK presidency in 1998, when steering groups were abolished. Even so, the structures were complex and opaque.

Decisions were to be made by unanimity in the JHA Council, which would be supported by Coreper and the K4 Committee. The K4 Committee and the working groups brought working methods established in the Trevi Group into the EU. Under the JHA pillar, the Commission shared the right of initiative with the member states. A JHA portfolio was created within the then Directorate-General (DG) for Social Affairs. The EP had the right only to be ‘regularly informed’ of developments and ‘consulted’ about decisions, while the Court of Justice of the EU had no mandatory jurisdiction over the JHA pillar.

The legal outputs that were possible from the JHA pillar were also very limited in their scope. There was no provision for issuing regulations or directives under the JHA pillar; instead, member states had to rely on other types of instrument. Joint positions and joint actions could define the EU’s approach to a particular issue, while conventions in international law could be agreed, which would then need to bep. 294

Box 12.3 Europol

Europol is based in The Hague and has more than 600 staff. Its origins lie in nascent forms of police cooperation established within the Trevi Group, whose remit was subsequently expanded as a result of the perceived security challenges that became associated with single market integration. The Europol Convention agreed in Rome in July 1995 provided a base for cooperation. Europol does not have powers of arrest. Its role is to facilitate information exchange and coordinate investigations. Around 130 liaison officers from national police forces work with Europol. Europol has complex institutional structures. It has a management board that is composed of one high-ranking representative of each member state and the European Commission. Each member has one vote. The management board meets twice-yearly to discuss a wide range of Europol issues and to adopt a general report on Europol activities. These reports are then submitted to the JHA Council for its approval. A director appointed for a four-year term supervises the work of three departments (focusing on operations, governance, and capabilities).

ratified in accordance with constitutional procedures in each member state. Three such conventions were agreed: Schengen; Dublin (dealing with asylum); and Rome (creating Europol—see Box 12.3). All took a long time to move from agreement to ratification. The process of ratification of the Schengen Agreement was delayed by the implications of German reunification, while Dublin took seven years to move from signature to ratification.

Partial communitarization

The Amsterdam Treaty

The Amsterdam Treaty was designed to tackle some of the inadequacies of the Maastricht ‘pillar’ framework. The Maastricht Treaty was an uneasy compromise born more of the need to strike a deal than of considered reflection on the best way in which to tackle perceived new security challenges. At the most basic level, it seemed that the Maastricht framework did not provide the member states with the tools needed to do the job. For example, the inability to use the Community decision-making method inhibited the effectiveness of cooperation, as demonstrated by the difficulty securing ratification of conventions agreed in international law. Opaqueness and difficulties in holding decision-makers to account were seen as exacerbating the democratic deficit.

During the Amsterdam negotiations, a core group of member states were prepared to see fuller incorporation of internal security issues within the Community, but others, such as the UK and Denmark, were not prepared to take such a step. The p. 295solution, as will be seen, was the use of ‘flexibility’ in the Treaty framework, which allowed the UK, Ireland, and Denmark to opt out of measures on free movement, immigration, and asylum. The UK and Ireland were not Schengen members, while Denmark was. This move can be understood as partial communitarization that extended further powers to the Commission and the Court, but with constraints on decision-making, such as continued use of majority voting in the Council until at least five years after the Treaty came into force.

A key feature of the Amsterdam Treaty was the new Title IV added to the Treaty framework. It brought free movement, migration, asylum, checks at external borders, protection of the rights of nationals of non-member countries (known as third-country nationals, or TCNs), and judicial cooperation in civil matters into the scope of the Community method of decision-making. The Council remained the key decision-maker for five years following ratification of the Treaty (until 2004). This meant that:

the power to make proposals was shared by the Commission and the member states;

all decisions required unanimity in the Council; and

the EP would be consulted before decisions were taken.

The Court of Justice also saw its competences extended to cover Title IV matters, but only following a reference from the highest court of appeal in a member state. This provision constrained the Court of Justice’s role in making rulings based on preliminary references from tribunals in member states seeking to apply Community law.

The European Commission did not exercise jurisdiction over the JHA pillar. After 2004, the Commission had sole right of initiative in Title IV (just as in other Community areas of competence) and, following unanimous agreement by the Council, the codecision and qualified majority voting (QMV) procedures could be applied. The ‘Return’ Directive of 2008,2 covering expulsion of irregular migrants, was the first measure to be adopted using codecision (renamed under the Lisbon Treaty as the ‘ordinary legislative procedure’, or OLP).

Objections from the UK and Ireland were accommodated within a protocol added to the Treaty, which made it clear that the two countries were not covered by measures under Title IV and could not be bound by decisions made by other member states. Both countries could, however, opt in to proposals. The protocol was added because the UK and Ireland reserved the right to impose controls on those entering their territory, while other member states within ‘Schengenland’ were removing such controls. Ireland was keen to participate so far as possible with Title IV measures, while maintaining its common travel area with the UK. The UK government, too, opted into a range of Title IV measures, including all key asylum measures (Papagianni 2001; Geddes 2005; Adler-Nissen 2009a) pre-Brexit. The UK has actually seen the benefits of EU-level action on those forms of migration that its policies have defined as unwanted (asylum seekers and irregular migrants), while not p. 296participating in those measures that are were potentially rights-extending (such as the 2003 directive that extended rights equivalent to EU citizens for TCNs legally resident in the Union for a period of five years or more3) or measures that impinged on the ability to exercise border controls at the UK’s frontier. The government of Denmark also chose not to be covered by Title IV measures. Its position was different because it is a Schengen member state. But governments of a more Eurosceptic and anti-immigration hue were keen to be able to decide whether or not to implement decisions agreed under Title IV in national law that built on the Schengen framework.

The JHA pillar dealt with provisions on JPC in criminal matters, which included racism and xenophobia, terrorism, trafficking in persons and offences against children, drug trafficking, arms trafficking, and corruption and fraud. The aim here was to promote closer cooperation, although the institutional mechanisms for doing so were weak. The instruments for policy action remained joint positions, decisions, framework decisions, and conventions.

In 1999, a DG JHA was established within the Commission that, by 2010, employed more than 600 staff. In 2010, the remit of the DG was split into two, with one new DG dealing with home affairs and another with justice. Viviane Reding, the first Justice Commissioner, made a big impact in her new role in 2010 when she labelled plans to round up and deport Roma from France to Romania ‘a disgrace’, and issued a letter of formal notice to the French government requesting full information on the transposition of the 2004 Free Movement Directive4 into French law. Her intervention was grounded in a suspicion that the French were employing ethnic criteria to discriminate against Roma, which would be against EU law (Boswell and Geddes 2011: 195).

The five-year plans

On the basis of the agreement reached at Amsterdam, the interior ministers of the member states met in Tampere, Finland, to draft a five-year policy plan specifying their objectives in the area of internal security policy and cooperation. (See Box 12.1 for a timeline of key developments.)


The Tampere Programme specified a number of objectives.5 First, a ‘common migration and asylum policy’ was taken to mean efforts to promote partnership with countries of origin, to promote ‘fair treatment’ of non-EU nationals (TCNs), and to seek better management of migration flows with action to tackle illegal immigration. The second area identified by Tampere was creating ‘a genuine European area of justice’, p. 297including mutual recognition of judicial decisions. The third area was the ‘Union-wide fight against crime’, which sought to step up cooperation against crime. Finally, Tampere sought stronger external action, with closer integration of the external and internal dimensions of policy. This effort has become evident in what the EU calls its ‘global approach to migration’. Lavenex (2006) has noted that migration—typically the domain of interior ministries—has now acquired a significant foreign policy dimension.

Tampere was a powerful agenda-setting document. Political leaders tend not to have the time, ability, or inclination to flesh out the broad policy directions that they provide; they rely on officials to perform this function for them. On the basis of the Tampere conclusions, the Commission and the member states set to work. The Commission, in particular, was keen to stake out a role for itself, to develop credible policy ideas, and to set ambitious targets for realization of the various components of the AFSJ, identified by the Tampere document.

Particular progress was made in the development of common migration and asylum policies, but here, too, we see some distinct features of EU policy development: the dominance of the executive branch of national governments, and the existence of opt-out provisions for the UK, Ireland, and Denmark, but combined with a growing role for supranational institutions. There is an important distinction between free movement for EU citizens, which is covered by EU law, and the regulation of migration by TCNs, which is largely a matter for the member states. In 2013, a total of 3.4 million people immigrated to one of the EU’s twenty-eight member states (to become twenty-seven post-Brexit), while at least 2.8 million people emigrated from an EU member state.6 Of these 3.4 million immigrants, 1.4 million were from non-EU member states (TCNs), 1.2 million were citizens of another member state exercising their right to free movement, and a further 800,000 were returning to the country of which they held citizenship. In the 2000s, Italy, Spain, and the UK were key destination countries both for TCNs and EU free movers.

Between 2000 and 2006, Spain’s TCN migrant population rose by 194 per cent to 3.1 million. In 2006 alone, 840,000 people moved to Spain, of whom 500,000 were TCNs. A key issue for these countries has been border controls and efforts to tackle ‘irregular’ forms of migration—more precisely, those not authorized by migration policies.

After 2012, there were increases in migration by asylum seekers, with Germany and Sweden the key destinations. In 2015, there were more than 1.2 million asylum applications in the EU, with more than half of these in Germany and Sweden.7

The Hague

The Hague Programme covered the period 2004–09.8 It sought to move the EU from standards-setting measures, such as those on asylum, towards a more common approach to key internal security issues, including a common asylum policy. It also p. 298sought to deal with admissions policy, which had been an area in which member states had resisted the extension of EU competencies. There was further reinforcement of measures to tackle irregular migration, and to step up cooperation with non-EU member states on migration and asylum as part of the external dimension. This effort included measures to expel and return irregular migrants to their countries of origin. In December 2008, the ‘Return’ Directive, laying down rules on expulsion, was agreed. It was the first directive in the area of internal security to use the codecision procedure.

In the area of JPC, the Hague Programme sought greater exchange of information, which was indicative of the emphasis laid in EU internal security on the gathering of data through systems such as the SIS and Eurodac. The programme also called for greater use of Europol and the EU’s Judicial Cooperation Unit (Eurojust). Greater stress was laid in the Hague Programme on measures to tackle terrorism in terms of prevention, preparedness, and response.


The Stockholm Programme9 and subsequent action plan prepared by the Commission (European Commission 2010) marked a further development of the plans for the AFSJ in light of earlier developments, and also the revised structure for internal security policy developed in the Constitutional Treaty (which was dropped following ‘no’ votes in referenda held in France and the Netherlands in 2005). The key internal security elements of the Constitutional Treaty were included within the provisions of the Lisbon Treaty, the main headings being: citizenship and fundamental rights, including strengthening cooperation in law enforcement; border management; civil protection; disaster management; and judicial cooperation. The importance of the ‘external dimension’ of internal security is a prominent feature of the Stockholm Programme. Its inclusion blurs the distinction between the responsibilities of interior and foreign ministries, and raises questions about how the EU can achieve objectives in non-member states. In the 1990s and 2000s, it was able to transpose fairly effectively its objectives into the national legal frameworks of accession states, because it was able to dangle the carrot of membership in front of them. It cannot offer a membership prospect to countries such as Morocco and Libya, but has been very keen to work with them to help to achieve objectives such as curbs on the flows of irregular migrants. Here, we see that the external dimension of internal security requires issue linkage if agreements are to be reached and if connections are to be made between issues such as migration control and border security, with issues of importance to sending and transit states, such as aid, trade, and development. As Paoletti (2011) shows, this stance gave repressive regimes, such as that in Libya, leverage and the ability to extract concession from the EU, such as funding for major infrastructural projects. These connections with the Gaddafi regime caused embarrassment for EU p. 299leaders in the aftermath of the popular uprising that began in 2011 and subsequent military action led by the North Atlantic Treaty Organization (NATO). Border control was a key motive for cooperation and became a concern because of people smuggling operations from Libya following the effective breakdown of governance after 2011.

The Strategic Guidelines

The Strategic Guidelines10 were an attempt to step back from numerous targets and objectives contained within the Stockholm Programme; instead, the focus was on consolidation of existing measures—although the attempt to be strategic was seriously challenged by the refugee crisis and the difficulties that it provoked in terms of securing cooperation between member states, as well as developing the commitment within the Guidelines to working with non-member states. This external dimension proved very difficult because of the massive displacement caused by the conflict in Syria, estimated at more than 4 million people by summer 2015, with the majority moving to the neighbouring states of Jordan, Lebanon, and Turkey.

Policy development in the AFSJ

We can now examine three areas in which there has been policy development, but distinct ways of working. This distinctiveness illustrates the institutional complexities of internal security cooperation and policy-making at EU level.


Anti-terrorism policy developed in the context of the revised JPC pillar, with a focus on cooperation outside of the Community decision-making processes and a limited role for supranational institutions. Initially, the September 2001 (‘9/11’) attacks on Washington DC and New York played a powerful role in impelling cooperation, but the institutional base for such cooperation was already established, and the ‘meaning’ of security had been powerfully defined by interior ministries and security agencies beginning in the 1970s, meaning that there was a powerful institutional repertoire that provided the basis for responses to 9/11 and subsequent terror attacks, such as those in Madrid in 2004 and in London in 2005. Two common positions were agreed in 2001 on the funding of terrorist organizations and the freezing of terrorist assets. A Framework Decision on Combating Terrorism was adopted in mid-2002 that sought to create a common EU-wide definition of ‘terrorist organization’. This definition was broad, going beyond that included in United Nations (UN) p. 300conventions, and thus was seen by some as having the potential to lead to the application of anti-terrorist laws to public protest more generally, with the risk of trampling on civil liberties. The Madrid attack led to the appointment of an EU anti-terrorism coordinator, an anti-terrorism action plan, and a ‘scoreboard’ to monitor implementation of measures in the action plan. Following the London attacks, an extraordinary meeting of EU interior ministers was held, at which it was agreed that all measures that had already been agreed should be implemented as a matter of urgency. This list included the European evidence warrant (EEW), the strengthening of the SIS and visa information system, biometric details on passports, stronger efforts to combat terrorist financing, efforts to prevent recruitment and radicalization, and stronger controls on the trade, storage, and transport of explosives. After 2012, concern grew about Muslim citizens of EU member states moving to Iraq and Syria to join with the so-called Islamic State (IS) terrorist organization. The murderous attacks in Paris and Brussels in 2015 and 2016 were carried out by terrorists linked to IS (see Box 12.4). In June 2014, the Council adopted an EU Strategy for Combating Radicalization and Recruitment to Terrorism, with the aim of tackling the causes of radicalization. There have also been efforts to promote EU–US cooperation, which have proven controversial, as Box 12.5 illustrates.

Box 12.4 The 2015 and 2016 terror attacks on Paris and Brussels

Paris was the scene of two terrorist attacks in 2015 that left more than 140 people dead. On 7 January 2015, two brothers claiming allegiance to the Al Qaeda terrorist group in Yemen murdered eleven people at the offices of the satirical magazine Charlie Hebdo. On 11 January, world leaders from forty countries joined nearly 4 million other people to march in solidarity and against the attacks. The tragic events of January were compounded by the devastating attacks on 13 November 2015 on a number of targets across Paris by terrorists linked to IS that saw 130 people murdered. Of these, eighty-nine were killed while attending a rock concert at the Bataclan theatre. Even worse carnage was avoided when a suicide bomber was denied entry to the French national stadium where a France versus Germany football match was being played. He detonated his vest outside the stadium, killing three bystanders. In response to the attacks, President Hollande declared a three-month state of emergency and announced intensified attacks on IS targets in the Middle East. On 22 March 2016, thirty-two people were murdered in Brussels when a series of bombs exploded at Brussels airport and Maalbeek metro station, the latter in the heart of the EU quarter of the city. The perpetrators of this attack—three of whom died in the bombings—had been involved in the November 2015 Paris bombings. Together, the Paris and Brussels attacks drew further attention to weaknesses within the EU Schengen system. They also led to calls for much greater efforts to identify suspects and share information within the Schengen system. This move would include a European passenger name record, with airlines obliged to hand over passenger data to national authorities including for ‘internal’ Schengen flights.

p. 301

Box 12.5 EU–US cooperation post–9/11

Cooperation on anti-terror measures has also involved working closely with the US authorities. This area of cooperation has provided further examples of cooperation in the reserved domain of executive power, with limited legislative or judicial involvement or scope for oversight. Concerns have also been expressed about the abuse of personal data in breach of EU data protection laws. In the post-Lisbon EU, however, we see the EP flexing its muscles in this area, because it has the power to block international agreements.

Bilateral EU–US agreements on extraditions and mutual legal assistance were agreed in 2003, and implemented in the bilateral relations of the member states with the US to take effect in 2010. The extradition agreement specifies extraditable offences, the exchange of information, transmission of documents, and transit rules. It also provides protection against use of the death penalty, because extradition to the US is possible only if the death penalty will not be imposed. The mutual legal assistance agreement provides for exchange of financial information.

Cooperation was further extended when a controversial EU–US agreement, the Passenger Name Record (PNR) Directive, gave American authorities access to passenger data from European airlines. The EP obtained an annulment of the PNR Directive by the Court of Justice on the grounds that greater data protection measures were needed to conform to EU data protection laws. The EP also questioned the Commission’s legal jurisdiction to conclude the PNR agreement. The Court of Justice ruled that the Commission did not have the legal authority to do so. The Court of Justice judgment did not deal with privacy and data protection issues, which left scope for bilateral agreements to take the place of the PNR Directive between the US and each EU member state. As part of its ‘global approach’ on internal security issues, the Commission announced plans in 2010 to revisit the PNR issue both within the EU and with key partners such as the US, Canada, and Australia. The terrorist attacks of 2015–16 led to intensified action to agree sharing of PNR data, including for Schengen ‘internal’ flights (see Box 12.4).

Using powers granted to it by the Lisbon Treaty in 2010, the EP also acted to block an interim SWIFT data-sharing agreement between the EU and the US. The Society for Worldwide Interbank Financial Telecommunication (SWIFT) is a private company, based in Belgium, which handles international bank transfers. The EP’s rejection would affect the ability of the US authorities to access ‘bulk’ data, but it would still be able to access individual data using the provisions of the agreement on mutual legal assistance. The EP’s civil liberties committee indicated that it was unlikely to look favourably on revised Commission proposals if they were not to address fundamental issues of data protection and respect for the rights of EU citizens. Later in 2010, a new version of the agreement was approved by the EP. How far these fundamental issues were resolved remains a matter of argument, but it was an example of the ability of the EP to change the content of a Treaty signed by the Commission and the member states.

Migration, asylum, and border controls

Migration, asylum, and border controls were located within the new Title IV, and subject to application of Community decision rules, with a transitional period until p. 3022004. There were two key policy drives in the aftermath of Amsterdam and Tampere that reflected consolidation of EU efforts to ‘securitize’ migration: the development of a common asylum policy, and efforts to tackle irregular migration. The Common European Asylum System (CEAS) was put in place in 2003, containing a ‘Dublin II’ regulation, which brought the one-stop asylum procedure into the framework of EU law plus directives on temporary protection, reception conditions, qualifications to enter the asylum process, and asylum procedures. A revised framework—so-called CEAS II—was in place by 2013. These were criticized for focusing on minimum standards and gave a lot of wiggle room to member states. The refugee crisis provoked a crisis in the Dublin system because, in response to the humanitarian crisis, German Chancellor Angela Merkel announced on 4 September 2015 that all asylum applications by Syrians would be considered, irrespective of the point at which they entered the EU. In September 2015 alone, around 200,000 asylum seekers arrived. In the summer and autumn of 2015, hundreds of thousands of people were moving across Europe to Germany, with tensions at the borders of Greece, Hungary, Austria, Slovenia, Croatia, and Macedonia. The Commission’s European Agenda for Migration of May 2015 proposed relocation for asylum seekers (European Commission 2015a). Agreement was reached in 2015, for relocation of up to 160,000 asylum seekers from Greece, Italy, and Hungary to other EU member states. By March 2016, fewer than 700 people had actually been relocated. The UK refused to participate in this mandatory EU scheme, and announced separate plans to take in 20,000 people from Syria between 2015 and 2020. The EU also sought agreement with Turkey to reinforce border controls and to stop movement towards Europe, although Turkey insisted on further assistance with refugees amounting to €3 billion and raised the issue of visa liberalization for Turkish nationals moving to the EU.

The European arrest warrant

The European arrest warrant (EAW) shows how single-market principles in the form of mutual recognition have been applied to internal security. The EAW is a warrant for arrest that is valid throughout the EU. Building on the objectives specified in the Tampere document to step up the fight against crime and to extend the principle of mutual recognition, a framework decision of 2002 was made that entered into force on 1 January 2004. The EAW is designed to speed up the process of extradition and is based on the principle that warrants issued for arrest by national judicial authorities are recognized by other member states. The EAW was used to return Osman Hussain, suspected of involvement in the failed bombings in London in July 2004, to the UK from Italy. More controversially, Andrew Symeou, a British national, was sent to Greece on a manslaughter charge for alleged involvement in a death at a nightclub in 2007. Symeou denied the charge and questions were raised about the evidence, as well as allegations of mistreatment of witnesses by the Greek authorities. Symeou spent eleven months in prison before being released on bail. He was cleared of the charges in June 2011.

p. 303The Lisbon Treaty

The implications of the Lisbon Treaty for internal security were profound. The creation of an AFSJ is defined as a competence that is shared with the member states. Almost all internal security matters are made subject to the Community method of decision-making, with use of QMV, codecision (under the OLP) for the EP, and competence for the Court of Justice extended to cover the issuance of preliminary rulings in the areas of judicial cooperation in civil matters, migration, and asylum. And, following a five-year post-ratification break (until 2014), the procedure was extended to all areas previously covered by the JPC pillar, including judicial cooperation in criminal matters, the Eurojust and Europol (see Box 12.3) agencies, and non-operational police cooperation and civil protection. Eurojust was established following a 2002 Council decision to pursue cooperation on serious crime between member states, and to allow for investigations and prosecutions covering the territory of more than one member state. Plans to augment the role of Eurojust by creating the office of a European public prosecutor charged to act against crimes against the EU budget encountered opposition from member states because of questions such as the role of such an office against value-added tax (VAT) fraud, which is a national prerogative (see Chapter 11). A European Asylum Support Office was established by a 2010 regulation to provide operational support to member states when dealing with refugee flows.

Lisbon also introduced an ‘emergency brake’ mechanism for individual member states with the power to veto measures that are seen to jeopardize its criminal justice system. A system of ‘yellow’ and ‘orange’ cards was also introduced, which gave national parliaments the right to return legislative proposals to the European Commission. This system could serve as a check on EU action, but seems more likely to be a way in which legislatures can seek to influence the negotiating positions of national governments. Lisbon also made important organizational and institutional changes, summarized in Box 12.6.

Box 12.6 Post-Lisbon organizational changes

A Standing Committee on Internal Security (COSI) was created to develop the EU’s internal security strategy. COSI is composed of high-level officials from interior ministries. The respective roles of the Standing Committee on Immigration, Frontiers and Asylum (SCIFA) and the Article 36 Committee (CATS) were to be reviewed by January 2012. Reporting to SCIFA and CATS are working groups on: visas; asylum; external frontiers; civil law matters; terrorism; customs cooperation; cooperation in criminal matters; cooperation in substantive criminal law; civil protection; fundamental rights; citizens’ rights and free movement of persons; information exchange and data protection; external relations; law enforcement; Schengen; and, finally, general matters, including evaluation.

p. 304Conclusions

The introduction to this chapter posed two sets of linked questions that explored the relationship between institutions, policies, and ideas. First, we asked what impelled these developments. We saw a range of factors linked both to the logics of European integration, such as the effects of single market integration, as well as to the resonance of transboundary issues, such as terrorism, in the domestic politics of member states and the perceived need to seek new venues in which to develop responses to these challenges. We then asked why developments occurred at some points in time and not at others. We saw the importance of certain critical junctures in policy development linked to the drive for economic integration that informed Schengen and the SEA, as well as the broader implications of the end of the Cold War and the refugee crisis. But we saw, too, the need to account for the impact of systematic patterns of working together on internal security that developed from the 1970s onwards. These arrangements have changed the setting within which occur both thinking and decision-making about internal security. Thus we need to focus both on the timing of events and on the underlying tempo of institutional development linked to the institutionalization of organizational action at the EU level in the area of internal security.

We can now seek to factor in the role that ideas play in shaping institutional change and policy development. The chapter emphasized how changed conceptualizations of security have played a key role in shaping the EU internal security agenda. But it is also ideas about security advanced by certain actors largely concentrated within the executive branches of member state governments that have played a particularly key role in shaping the policy agenda.

This focus on the important underlying role of ideas about security leads to the second set of questions that have been addressed by this chapter. We saw that the executive branch of member state governments have been key players in policy development. We saw, too, that their role is challenged by the developing responsibilities of the Commission, EP, and Court of Justice in these areas. We have seen how all three have been able to flex their muscles and challenge aspects of policy. This tension became acutely apparent during the refugee crisis, and the attendant debate about borders, security, human rights, and the protection of refugees that illustrated the difficulty formulating a common EU response and the absence of EU-wide solidarity demonstrated by the large flows of refugees to a relatively small number of member states. There has been some rebalance in power relations between the executive, legislative, and judicial branches of government, but the executive branches of national governments still hold the upper hand, while the EP and Court of Justice have more scope to advocate and delineate the parameters of an AFSJ that realigns the relationship between freedom, security, and justice.

Further reading

The most comprehensive guide to the legal framework governing the AFSJ is provided by Peers (2011). Mitsilegas et al. (2003) provide a thorough account of the development of the AFSJ. Boswell and Geddes (2011) explore the implications for migration and mobility of emerging EU internal security competencies. Huysmans (2000) provides a sophisticated conceptual account of the securitization of migration, while Lavenex (2006) explores the implications for the governance of migration and asylum of ‘external governance’.

Boswell, C., and Geddes, A. (2011) Migration and Mobility in the European Union (Basingstoke and New York: Palgrave).Find it in your libraryGoogle PreviewWorldCat

Huysmans, J. (2000) ‘The European Union and the securitization of migration’, Journal of Common Market Studies, 38/5: 751–77.Find it in your libraryGoogle PreviewWorldCat

Lavenex, S. (2006) ‘Shifting up and out: The foreign policy of European immigration control’, West European Politics, 29/2: 329–50.Find it in your libraryGoogle PreviewWorldCat

Mitsilegas, V., Monar, J., and Rees, W. (2003) The European Union and Internal Security: Guardian of the People? (New York: Palgrave Macmillan).Find it in your libraryGoogle PreviewWorldCat

Peers, S. (2011) EU Justice and Home Affairs Law (3rd edn, Oxford: Oxford University Press).Find it in your libraryGoogle PreviewWorldCat

Web Links

p. 306In 2010, the Commission divided JHA between two Directorates-General: DG Home Affairs and DG Justice.

The Europol website.

The Centre for European Policy Studies (CEPS), a Brussels-based think tank, has a section dedicated to JHA on its website.

Civil liberties organization Statewatch monitors the growth of the European state.


© Oxford University Press 2017