All Roads Lead to Rome: The New AFSJ Package and the Trajectory to Europe 2020

• Date: 01 June 2014
• Year: 2014
• Author: Prof. Dr. Ester Herlin-Karnell
• Pages: 29

When the Stockholm agenda was being negotiated in 2009, the negotiators faced the uncertainty that the Lisbon Treaty would never survive its initial failure of 2007 and thereby risked the same fate as the doomed Constitutional Treaty of 2005. Such a scenario would have ended the fast track to further EU integration in criminal law as a better route to pursue than the alternative, namely the Court’s case law. Five years after the successful entry into force of the Lisbon Treaty and the Stockholm Programme, and with all the legal possibilities in place to move forward with this EU project, the political climate in the EU seems all the more difficult, and it is marked by intense and heated debate on the subject. The Commission’s communication, however, on “The EU Justice Agenda for 2020 – Strengthening Trust, Mobility and Growth within the Union” indicates that there is reason for hope.¹ Most importantly, the document demonstrates that the EU’s policy in this area has been largely streamlined with other EU polices, as EU criminal law has also been affected by the financial crisis.

The EU’s area of freedom, security and justice is an area that has had to respond to this question more urgently than perhaps any other EU policy area. Not only is the AFSJ still the fastest expanding field in contemporary EU integration, but it is also a very sensitive field, dealing with the most delicate legal issues such as the fight against crime, security, fundamental rights of protection, and judicial cooperation. The Stockholm Programme, which entered into force in conjunction with the Lisbon Treaty, is already coming to an end in 2014. The transnational protocol nr 10 is likewise coming to an end and some Member States like the UK have to decide on their commitment to the Union and to criminal law (The UK’s semi-permanent opt-out under Protocol 36 and hence the uncertainty are also coming to an end). This would indicate the beginning of something new: a novel era for AFSJ law.

This is certainly the hope of the Commission, which has set out its view in two communications: one dealing concretely with justice and home affairs and the other indirectly so in terms of the rule of law, which is of importance for the AFSJ.² Thus, for the first time, the AFSJ and the new multi-annual programme has been placed in the wider context of the future of Europe. 2020 is the EU’s vision when all will get well. What then would not be more suitable than including the AFSJ in this schedule?

This brief contribution will offer some reflections on the future of AFSJ law and what the author considers to be the main challenges for EU governance in this area by offering eight key points for further reference in the future.

This article will focus on criminal law but also underline the importance of a holistic understanding of the AFSJ as a whole − not isolated but related to the EU acquis in its entirety while still being characterized by the core of its sensitive subject matter of criminal law and human rights protection.

I. Background

In December 2009, the Stockholm Programme was adopted in tandem with the entry into force of the Lisbon Treaty. Hence, it was adopted at a sensitive constitutional moment for EU integration, when the famous pillar structure of the EU was abolished and when the Court of Justice gained jurisdiction in the thorny legal area of crime, security borders, and the fight against terrorism. While the founding AFSJ council Programme, Tampere concluded in 1999 was groundbreaking in the sense that it adopted mutual recognition to the AFSJ (then under the former third pillar), Stockholm was more challenging in elaborating on the new legislative powers as granted by the Lisbon Treaty. Yet perhaps Tampere has been the most important document for the development of the AFSJ law ever, as it extended the mutual recognition template, as traditionally applied within the internal market, to the criminal law cooperation area. While mutual recognition within the AFSJ has been much criticized for its overemphasis on law enforcement and little focus on procedural safeguards, it has had a remarkable effect on the “EU” indirectly harmonizing national criminal law and criminal procedure.

According to Art. 68 TFEU, the European Council “shall define the strategic guidelines for legislative and operational planning;” part of this planning involves the drawing up of a multi-annual agenda of points to be achieved in the AFSJ. This is well underway now. The European Council in its 27–28 June 2013 conclusions mandated the future Presidencies to start discussions on new strategic guidelines in the area of freedom, security and justice with a view to its June 2014 meeting. The intention is to agree on the new Post-Stockholm Programme (2015–2020) at the European Council on 26-27 June 2014. The new programme will be formally adopted under the Italian Council Presidency (July–December 2014) and may be called the "Rome Programme."³

With this contextual background in mind, I will set out my main concerns and suggestions for the future AFSJ programme in the following.

II. The New AFSJ Multi-Annual Programme

The underlying tone of the Commission’s communication on the EU Justice and Home affairs Agenda for 2020 is that, in the 15 years that have passed since the Treaty of Maastricht and the complex pillar structure that previously marked EU criminal law, this area is finally on track as being intensively related to other EU policies. It has just taken a bit longer. A very recent Eurobarometer survey, “Justice in the EU” (November 2013), offers an interesting foray into the empirical reality of AFSJ culture in EU legal practice. The basic message of this survey is that the construction of the AFSJ has come a long way but is still far from its completion and, although fairly positive towards the EU enterprise, that there is still room for improvement when it comes to the efficiency of the judiciary.⁴ Whilst the evaluation seems to confirm the common stereotypes − that Southern European countries distrust their judiciaries while the Nordic countries, Germany, the Netherlands, the UK, and Belgium are more positive towards their judicial systems − the results could, of course, also reflect the national cultures as to how the questionnaires were filled in.

In the following, I will set out eight key points that, in my view, are of crucial importance for the development of the AFSJ in the future Rome programme (if that is to be the name). Therefore, this reflection should be seen as a plea for the EU legislator and the judiciary to focus on certain central aspects.

III. Eight Key Points of Reference for the Future Regarding Criminal Law and the Drafting of a New Multi-Annual Programme 1. The rule of law and the AFSJ

It seems to be a tactical move on the part of the Commission to issue a communication on the rule of law in conjunction with its Europe 2020 communication for the AFSJ.⁵ As rightly observed by the Commission, the rule of law is the backbone of any democracy and all Union activity. The Commission points out that where Member State mechanisms to secure the rule of law cease to operate effectively this endangers the functioning of the EU’s need to protect this principle as a common value of the Union. It could be said that the rule of law encompassing the broader notion of “justice” is the basic constitutional principle on which other EU principles are based. The rule of law really is, therefore, the backbone upon which to base AFSJ cooperation. In addition, the rule of law is connected to the principle of legality in criminal law and to the principle of conferred powers in EU law. The EU needs to be firm on its commitment thereto, as it is so closely related to the protection of human rights and the kind of criminal law that will emerge in 2020.

2. Holistic view: How different is the AFSJ from the rest of the EU acquis?

There is a constant need at the EU level to reconcile the complexity of EU constitutional law in general with the peculiarities of criminal law. As the Commission stipulates in its communication mentioned above,⁶ there are no rights without effective remedies, and it is important to highlight the role of Art. 47 Charter on Fundamental Rights, which codifies these rights in the Treaty together with Art. 19 TFEU. To achieve a smooth operation of the enforcement system, the Commission proposes a holistic view of the consumer law acquis as a fundamental part of the AFSJ, which integrates civil law cooperation, criminal law cooperation, security and border control. In particular, the digital market and E-justice directives are of importance here, touching as they do on financial crime legislation and the question of trust in the market. Hence, the realization of an enforcement system of the Charter and effective...