A Game of Chance

• Date: 01 June 2018
• Year: 2018
• Author: Elena E. Popa
• Pages: 44
• DOI: https://doi.org/10.30709/eucrim-2018-002

I. Introduction

The five scenarios formulated in the European Commission’s White Paper on the Future of Europe represent a potential peek into the future, and the following paragraphs will investigate whether the European Union’s status quo should shift towards a new, ambitious vision or just continue muddling through. This paper will focus on the third scenario, i.e., a multi-speed Europe, which has been endorsed by the leaders of the big four EU Member States: Germany, France, Italy, and Spain. The purpose of this article is twofold: firstly, it tries to explore the feasibility of the third scenario envisioned in the European Commission’s White Paper on the Future of Europe, i.e., “those who want to do more do more,” and secondly, it examines and tests this scenario in the Area of Freedom, Security and Justice (AFSJ) by looking at European detention conditions. This particular focus will exemplify whether the current challenges can somehow be tackled more efficiently in the setting of a “coalition of the willing states.”¹

In the first section (below II.), the constitutional aspects of the EU, such as sovereignty and integration, will be touched upon, since it is also important to perceive the AFSJ in the broader context of European integration. After assessing the reality and impact of having a multi-speed AFSJ, the analysis will devote particular attention to the internal challenges that this single area faces. In the second section, I will argue that this common space has been built on a paradox, i.e., a form of “territorial unity”² based on three supposedly interlinked notions: freedom, security, and justice. Specifically, each of these three concepts will be associated with quantifiable issues such as the mutual recognition principle (based on mutual trust), fundamental rights, public security, and EU citizenship. It will be argued that the clash between the three supposedly interlinked notions of freedom, security, and justice constitute the main obstacle in achieving more coherence and uniformity in this European space. This will be demonstrated by looking at what I believe is the “root of the problem,” i.e., prison overcrowding. Therefore, the second section (III.) tests the feasibility of the third scenario by taking a closer look at European detention conditions.

The impracticability of having a “multi-speed AFSJ,” due to the potential tensions it might create among the Member States and their domestic legal systems, will become readily apparent. Examples will be provided to emphasize the spillover effects that poor detention conditions have, not only for the EU citizens but also for the Member States. Overall, the concerns voiced in this paper can be viewed in light of the current tug-of-war between the domestic and supranational levels, which in turn can be translated as an issue of “fragmented institutionalism.”³ The normative value of this paper will become evident when discussing three possible outcomes for the future of the AFSJ. It should be emphasized, however, that, in the end, it is up to the EU and its Member States to make this choice. It will be interesting to see which possibility will they favour: a multi-speed AFSJ, a utopian EU criminal law policy, or just a common EU legal culture?

II. The Future of the AFSJ

The European Commission released its “White Paper on the Future of Europe”. on March 2017.⁴ This guiding document sets out the main challenges and opportunities for Europe in the coming decade. Firstly, the paper analyses the “driving forces” of Europe’s future. Secondly, it presents five scenarios on how the EU could evolve by 2025. This depends on how the Union responds to the on-going challenges. Moreover, these scenarios aim at creating a vision for the EU after UK’s Brexit. The drafters of the paper did not, however, envision concrete actions or policy prescriptions. Thus, as Armin Cuyvers notes, these five scenarios are not mutually exclusive, which means that, in the end, a combination of the different scenarios can also be contemplated.⁵ Even though the European Council was divided on the presented vision of a multi-speed EU (third scenario), the leaders of Germany, France, Italy, and Spain – the “Big Four” – endorsed it. Therefore, it will be interesting to see whether this leads to a situation where diverging perspectives (e.g., in relation to security information, criminal evidence, transfer of prisoners, etc.) of the “willing States” clash. The following paragraphs will only consider this third option and takes the AFSJ as a testing area. We will explore the potential impact in the AFSJ should the idea of a multi-speed EU become a fully-fledged political effort.

1. Main Concerns

Under the proposed model of a “coalition of the willing”, a group of countries deepen their cooperation in certain areas such as security or justice matters. The issue of having different speeds of integration within the EU means that, by advancing integration among some countries, questions regarding the cohesion of the EU will arise. The challenge may then translate into a situation in which policies of integration produce a hostile environment within the EU, especially among those states that were not included in the process. In order to understand the potential consequences of the third scenario, one needs to first become familiar with the concept of sovereignty, which can be viewed as a claimed status that is usually asserted when this status is challenged. Here, it is important to note that Cuyvers, while discussing the potential conflict between sovereignty and integration, has tried to emphasise that this tension should be actually exposed as a clash between two strands of sovereignty, i.e., internal (the people) and external (the state) sovereignty.⁶

This relationship is described in the sense of a confederal notion of sovereignty. By making a comparison with the US federal system, Cuyvers highlights the fact that confederal systems, such as the EU, incorporate extra-state and even non-state entities into the national constitutional framework for the delegation of sovereign powers. As a result, the state loses some of its sovereignty, but the people do not lose their sovereignty. He therefore argues that European integration does not conflict with sovereignty as such but only with external concepts of sovereignty. He further states that we are witnessing a relative decline of external sovereignty and a relative ascendance of internal sovereignty.⁷ In the AFSJ, one could infer this from the 2017 EU Citizenship Report, which envisions that the vast majority’s belief leans towards a more common EU action in order to address security threats.⁸

The external sovereignty claim has been at the core of the AFSJ since its inception.⁹ This was due to its link with sensitive areas such as criminal law, security, migration, and border control, which are closely related to the nation-state. As a result, Member States were unwilling to abandon the intergovernmental structure entirely. ¹⁰ Particularly, since the drafting of the Maastricht Treaty, the Member States have tried to keep EU criminal law outside the supranational arena.¹¹ After the Amsterdam Treaty, the AFSJ emerged, and it was the Tampere Council conclusions in 1999 and the subsequent Hague and Stockholm programmes¹² that established the foundations for a European criminal law. The resulting institutional arrangement reflects a compromise, something that Stephen Coutts describes as a “halfway house between supranationalism and intergovernmentalism.”¹³ The Lisbon Treaty has been perceived as a step closer to constructing the AFSJ as a common space and, eventually, more as a European public order.¹⁴ Even after its consolidation and incorporation into the supranational architecture, the AFSJ was seen by many as lacking a “particular finalité.”¹⁵ Beyond abstract commitments, EU criminal law aspects are addressed in a fragmented way, and one can easily observe that there is no general broad criminal policy theme.¹⁶

Therefore, the main concerns for having a multi-speed Europe, in which only the willing States get to be involved, stem from the very fact that the framework in which it takes place cannot be characterized by uniformity and coherence, and it forces one to choose between either the EU or the Member States.¹⁷ A European criminal justice system is a vital part of securing the European public interest and, as a result, it should be more than the sum of the parts its Member States have endowed it with. By viewing European criminal law as set within a broader context that of a justice system, a clear condition that this new system requires is a quasi-constitutional setting. The current European criminal justice system can be regarded as undermining the constitutional relationship governments have with their citizens.¹⁸ As mentioned above, this occurs because, in the AFSJ, the external sovereignty component has often clashed with the internal one, and this in turn allowed national governments to create a forum in which their one-sided criminal policy concerns dominate. Therefore, this policy area essentially remains one driven purely by political will via ad hoc action (e.g., unanimity requirements and emergency break provisions) and, as such, the current structure ignores the revolutionary character of EU criminal law. The next section will discuss these issues and their consequences in light of a multi-speed AFSJ.

2. AFSJ at a Crossroads Between Sovereignty & Integration

As we have seen, by applying the multi-speed scenario to the current AFSJ mechanism, one could argue that the current structure of the system will not be affected per se; thus, the idea of deeper cooperation will be preserved in the future. A possible outcome would be that the Member States are unreceptive to the overall concept of deeper integration, especially when asked to support certain areas of AFSJ cooperation.¹⁹ However, it is clearly...