POMFR: EU Security and Justice Law after Lisbon and Stockholm

By Niovi Vavoula

Diego Acosta Arcarazo and Cian C Murphy (eds.) EU Security and Justice Law after Lisbon and Stockholm, Hart Publishing 2014, 211 pages, ISBN: 978-1-84946-422-2

 Myriads of pages have been written about the impact of the Lisbon Treaty and the Stockholm Programme in the development of an EU ‘Area of Freedom, Security and Justice’ (AFSJ). This volume, edited by Diego Acosta Arcarazo and Cian Murphy and including a foreword by Sir Francis Jacobs, aims at adding to the existing literature. In particular, it takes stock of the legal developments in the field after Lisbon and Stockholm and provides an evaluation on what has been achieved and where there are still shortcomings. The publication of the volume comes at an interesting time; it coincides with the end of the transitional period, signifying that the Court of Justice of the EU (CJEU) and the Commission will assume their full powers over the former third pillar and the pick-and-choose relationship of the United Kingdom with the field will reach a crossroads. Besides, a new multi-annual Programme (named after Rome or any other Italian city) will be adopted by the European Council.

In seeking to improve the understanding of the impact of Lisbon and Stockholm, the volume brings together leading scholars (e.g. Kostakopoulou, Mitsilegas, Peers) and talented academics in their early stages of career (e.g. Moreno-Lax, Herlin-Karnell). The editors clarify from the outset that it is not their intention to provide an exhaustive analysis of all the developments in the field. This explains why the title of the book does not include the term ‘freedom’ because, as noted, some important aspects of it (namely freedom of movement and civil cooperation) are missing. However, the volume covers a good range of aspects from general issues, such as fundamental rights protection and constitutional principles, to specific aspects within AFSJ law including regular immigration, asylum policy, criminal law (with a separate chapter specifically on counter-terrorism) and external relations. Furthermore, it is delightful that the reader is exposed to insights into the practical performance of legal instruments and particular attention is paid to the recent case law of the CJEU.

 The first chapter, drafted by the editors, serves as an introduction to the volume. It sets the atmosphere for the subsequent contributions by outlining the major constitutional revisions, the multi-annual programmes and the legal challenges faced by the CJEU. The next four chapters focus on general aspects of the AFSJ law. Steve Peers is justifiably entrusted with the labourious task to provide an overview of the reforms brought about by the Lisbon Treaty. Not only does he explore the changes, but he also provides statistical data (which we rarely come across) and draws interesting conclusions; his view that though the substance of law is not fully liberal it certainly moves towards liberalisation is particularly intriguing. The contribution of Ester Herlin-Karnell explores the underlying constitutional principles of the AFSJ. Her analysis on mutual recognition (which she argues is based on a changing concept of mutual trust) and on proportionality deserves the reader’s attention. Jorrit J Rijpma focuses on the role in practice of EU institutions and agencies in the post-Lisbon era and wonders whether the institutional rebalancing continues to reflect the particularities of JHA cooperation. His chapter is of added value as, on the one hand he provides feedback on what has taken place in practice and on the other hand, he includes information on the work of the Internal Security Committee (COSI), which was set up post-Lisbon (Art. 71 TFEU) and, to the best of the reviewer’s knowledge, has not yet received much scholarly attention. The last chapter on more general matters is written by Theodore Konstadinides and Noreen O’Meara who examine whether the Lisbon Treaty and the Stockholm Programme strengthened or weakened the protection of fundamental rights, while placing special focus on judicial protection in criminal matters. Their well-structured analysis successfully puts into order the various aspects of this massive topic.

 Moving to specific EU policies, Stephen Coutts contemplates on the nexus between citizenship, the AFSJ and fundamental rights. In his positive reading of the Stockholm Programme, he explains why these policies were initially separated and why this relationship is now changed. Given that for many years these policies were distinct, it was surely a pleasure to learn more about this issue. In Chapter 7, the debate on whether Art. 83 TFEU will lead to overcriminalisation is examined by Valsamis Mitsilegas. His arguments on how the limits of EU competence in criminal matters may have in fact the opposite decriminalising effect, as well as the information he supplies on the EU criminal law policy in practice are fascinating and reinvigorating. The next chapter by Dora Kostakopoulou, Diego Acosta Arcarazo and Tine Munk unearths the ‘saga’ of the EU Immigration Code and provides important insights into the negotiations for the adoption of the Directives on the Single Permit, Seasonal Workers and Intra-Corporate Transferees. Given that the last two were only recently adopted, it is useful to read about the thorny issues that have arisen during the trialogue process. As regards the EU asylum policy, Violeta Moreno-Lax elaborates on the reasons behind maintaining the underlying principles in asylum policies after Lisbon. It is particularly enjoyable to follow her arguments on how immigration and asylum policies have been interrelated, resulting in that refugees have been part of migration control. The final contributions are on counter-terrorism and external relations. Cian Murphy wonders whether, in the aftermath of Lisbon and Stockholm, counter-terrorism law moves towards liberalisation and in his quest he comprehensively addresses a number of aspects, such as the CSDP Policy, the freezing of assets, the role of Europol and the solidarity clause. He concludes that although the Lisbon Treaty and the Stockholm Programme testify that counter-terrorism is revisited (resulting in what he eloquently calls ‘normalisation’), the practice shows that this has yet to be set in motion. This conclusion is particularly intriguing and will generate further discussion. Finally, Christina Eckes assesses different ways in which the AFSJ is influenced from ‘outside’ factors including SWIFT, Prüm, Schengen and the PNR Agreements. This is a really interesting approach, since – as explained- the literature is mainly oriented towards demonstrating how the EU influences the outside and not the other way around.

Given the interrelations between the topics addressed and the inclusion of chapters of broad scope, it comes as no surprise that some issues are touched upon more than once. For example, the EU competence in criminal matters is central in Mitsilegas’ analysis, but Murphy also briefly comments upon the issue; the varied geometry as regards the application of EU rules among the Member States is explained by both Peers and Herlin-Karnell; the EU accession to the ECHR is analysed in the context of fundamental rights protection (Konstadinides and O’Meara) and as an external factor of shaping the AFSJ (Eckes); besides, some cases (Melloni, Radu, Kadi and NS) are particularly popular among the academics and for good reasons. This approach surely works to the benefit of the reader as it highlights the existing interconnections, enables him to fully grasp the impact of the developments and provides coherence and continuation. In any case, there is no raw repetition; the contributors rather present different angles of the issues discussed.

Furthermore, engaging with this fast-growing and dynamic field entails the inherent danger that the analysis will soon become (at least partly) out of date. In the case of the present volume, the state of law is presented as of 1st June 2013. Since then, there have been some major legal developments such as the completion of the Common European Asylum System and the adoption of the Directives on Seasonal Workers and Intra-Corporate Transferees. Nevertheless, the book manages to stand the test of time as it anticipates future developments by providing information on the progress of the negotiations and including specific comments.

Overall, the volume delivers well on what it promises to do and thus, it is certainly a valuable addition to the existing scholarship in EU law. Indeed, it provides a clear and comprehensive analysis on hot topics and helps to enhance our knowledge regarding both the successes of the past five years and the challenges ahead. For those interested in the development of an AFSJ, especially those working on the specific topics addressed in the chapters, it will act as a stimulus not only for drawing their own conclusions as regards the actual impact of the Lisbon Treaty and the Stockholm Programme, but most importantly for further discussion on the future steps towards the development of an AFSJ in the EU.

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