From past imperfect to future perfect? A
longitudinal study of the Third Pillar
By
Estella Baker and Christopher Harding
Reprinted from European Law Review
Issue 1, 2009
Sweet & Maxwell
100 Avenue Road
Swiss Cottage
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NW3 3PF
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From past imperfect to future perfect? A
longitudinal study of the Third Pillar
Estella Baker and Christopher Harding∗
Competence; Criminal law; EC law; European Community; Justice and home affairs
This discussion pursues a “longitudinal” analysis of the development of European
level efforts at crime control, looking at some of the past to inform an understanding
of both the present Third Pillar centre of such policy and measures, and the prospects
for future action in the wake of the Lisbon Treaty. It challenges the idea that this is
a relatively new (post-Maastricht) area of European activity by emphasising a wellestablished
history and dynamic of intergovernmental co-operation, and argues that
this momentum will not decrease in the near future. The discussion also probes what
may be seen as problematic within the method of the Third Pillar, and then what may
prove to be the legacy of the Third Pillar, even in the event of its possible collapse
should what is envisaged in the Lisbon Treaty actually take place.
Introduction
To a large extent the Third Pillar has remained an unremarked feature of EU history. It
is still marginal in much legal discussion,1 and public awareness and understanding of
the pillar structure generally, let alone the speciﬁc features of the Third Pillar, appear
to be vague. Thus the Third Pillar has been a subject of minority interest. But for that
interested minority it has been a signiﬁcant laboratory for the nurturing of supranational
European-wide crime control and a source of worry because it “has major implications
for the lives of European citizens”.2 The very fact of its obscurity, reinforced by the
lack of transparency inherent in its predominantly intergovernmental method, has helped
to foster the development of a half-hidden and imperfectly accountable crime control
regime—the evolution of a kind of criminal law by stealth.3 Indeed, the Third Pillar has
* University of Shefﬁeld and Aberystwyth University respectively. This is a revised version of a paper
given at “The Next 50 Years: The Future of European Law & Policy” conference held at the University of
Birmingham, July 3–4, 2008.
1 In particular, little attention has been given to Third Pillar activity in conventional textbook accounts
of EU law. As Denza remarked in 2002, “the intergovernmental pillars are not well understood even by
Community lawyers” (Denza, The Intergovernmental Pillars of the European Union (OUP, 2002), p.3).
2 Valsamis Mitsilegas, J¨org Monar and Wyn Rees, The European Union and Internal Security (Palgrave
Macmillan, 2003), p.1.
3 For earlier more critical accounts see, for instance, Mitsilegas, Monar and Rees, The European Union
and Internal Security; Sionaidh Douglas-Scott, “The rule of law in the European Union—putting security
into ‘the area of freedom, security and justice”’ (2004) 29 E.L. Rev. 219; J¨org Monar, “Justice and Home
Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation” (1998) 23 E.L. Rev. 320; Bernd
Meyring, “Intergovernmentalism and Supranationality: Two Stereotypes for a Complex Reality”, (1997) 22
E.L. Rev. 221; Christopher Harding, “European Regimes of Crime Control: Objectives, Legal Bases and
Accountability” (2000) 7 Maastricht Journal of European and Comparative Law 224.
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26 A longitudinal study of the Third Pillar
played host to what is now a signiﬁcant body of European criminal law and criminal
justice activity, but one which has an uncertain constitutional character and basis.
Now, however, the Third Pillar may be poised to merge its identity with that of the
Community. This is because one of the genuine reforms that is proposed under the
Treaty of Lisbon is the dissolution of the distinction between these parts of the Union’s
legal architecture. The severed parts of the original “Justice and Home Affairs” (JHA)
Third Pillar would be reunited under a new title on the “Area of Freedom, Security and
Justice” (AFSJ), housed within the Treaty on the Functioning of the European Union
(TFEU). Consequently, the acquis that has been built up under the Third Pillar would
be merged with that of the Community, turning the AFSJ into an entirely supranational
affair.4
For anybody who has monitored the development of European integration in the crime
control ﬁeld, this would be a momentous development. Until November 1993, criminal
law was an aspect of governmental activity that stood outside the Treaties altogether.5
And, even when the EU Treaty (TEU) then established the Third Pillar, co-operation
between the Member States took place on an intergovernmental basis because concerns
about pooling sovereignty over such a politically and culturally sensitive sphere precluded
the option of providing the Community with a criminal legal base.6 Compared with the
situation that may now be in prospect it is apparent that the Union has travelled an
extraordinarily long way in a very short space of time.
Nevertheless, it would be premature to conclude that the effect of the Lisbon Treaty
will be to complete a long-term trajectory through which this important body of Union
law and policy has travelled from an unequivocally intergovernmental past to a similarly
unequivocal supranational future. There are signs that the heritage of complicated and
obscure method represented by the Third Pillar approach may still be resilient and
inﬂuential. For instance, the appearance of fresh intergovernmental initiatives7 suggests
a prospective vision that is neither so straightforward nor so neat. Meanwhile, their
emergence testiﬁes to the way in which the criminal law ﬁeld is assuming importance
as an increasingly intense and lively site of integration within, and in parallel with, the
Union. That phenomenon is likely to continue, regardless of the immediate fate of the
Treaty of Lisbon, and underlines the reasons why this is a particularly opportune moment
to reﬂect critically upon the ongoing progress of European crime control efforts.
The discussion will begin by tracing the evolutionary process through which the Union
has acquired competence over criminal law affairs, clarifying the longer term trends that
4 Although it will, of course, be subject to the “opt in” arrangements that have been negotiated by Denmark,
Ireland and the United Kingdom, discussed below.
5 At least, that was the position formally speaking. But the true state of affairs has always been more
equivocal because of the role played by the criminal law in regulating economic activity.
6 This preoccupation is not shared to the same degree by the Member States: see L.F.M. Besselink,
“Sovereignty, Criminal Law and the New European Context” in P. Alldridge and C. Brandts (eds), Personal
Autonomy, the Private Sphere and the Criminal Law (Hart, 2001), pp.94–96.
7 The Pr¨um Convention and meetings of the “G6 Group”, discussed below; and see also the recent note to
the Council concerning the Salzburg Forum: Council of the European Union, Note from Austria, Bulgaria,
the Czech Republic, Hungary, Poland, Romania, Slovakia and Slovenia to the Council, Police Cooperation
within the Salzburg Forum -an Example for Successful Regional Cooperation, Paper 14304/08 (Brussels,
October 15, 2008).
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Estella Baker and Christopher Harding 27
lie embedded within that process, and providing a basis for an appraisal of the strengths
and weaknesses of that competence.
The long-term trajectory of the European crime control and criminal law regime
Currently, EU competence with respect to criminal law matters spans the First and
Third Pillars. Recently, the demarcation between the two has fallen under particular
scrutiny thanks to the Court of Justice’s rulings in what are commonly referred to as the
“environmental offences”8 and “ship source pollution”9 cases. Although the focus here is
the Third Pillar, this section will start by saying a little about the Community’s powers
because they become relevant later on. It will then proceed to a historical overview of
the evolution of the Third Pillar, delineating the three key phases in its development to
date, and identifying a number of long term trends with which it seems to be associated.
These will then be reconsidered in the last section of the article, which concerns the
prospects for the future.
Community competence
With one minor exception,10 the founding Treaties did not refer to the criminal law.
Nevertheless, a more than negligible acquis that affects criminal law in one way or
another has grown up under the First Pillar.11 Consequently, there is no doubt that the
Community is seised of some competence over criminal law matters, notwithstanding the
fact that the EC Treaty still does not include a dedicated legal base to enable its exercise.
Simultaneously, however, despite the Court’s rulings in the environmental offences and
ship source pollution cases, its precise scope remains unclear. Furthermore, disagreements
have continued as to whether the relevant body of case law and legislation remains a mere
“working title” under which to categorise a miscellaneous bundle of loosely associated
measures12 or should be regarded instead as a more ambitious enterprise with the potential
to coalesce into a coherent body of Community criminal law. Moreover, even if the latter
is assumed, precisely because of the absence of a bona ﬁde criminal legal base to provide
the process with more momentum, progress towards the realisation of this promise has
been piecemeal and relatively slow.
Under these circumstances, Community intervention in the crime sphere has been
conﬁned to situations that can be classiﬁed as parasitic upon the exercise of powers
8 Commission v Council (C-176/03) [2005] E.C.R. I-7879; [2005] 3 C.M.L.R. 20.
9 Commission v Council (C-440/05) [2007] E.C.R. I-9097; [2008] 1 C.M.L.R. 22.
10 Euratom Treaty Art.194(1) which dealt with breach of secrecy. See further J.W. Bridge, “The European
Communities and the Criminal Law” [1976] Crim. L.R. 88.
11 For discussion see, inter alia, E. Baker, “Taking European Criminal Law Seriously” [1998] Crim. L.R.
361; G. Corstens and J. Pradel, European Criminal Law (Kluwer, 2002), Part Three; M. Delmas-Marty,
“The European Union and Penal Law” (1998) 4(1) E.L.J. 87; Ren´e Guldenmund, Christopher Harding and
Ann Sherlock, “The European Community and Criminal Law” in Christopher Harding et al. (eds), Criminal
Justice in Europe: A Comparative Study (Clarendon Press, 1995); Steve Peers, EU Justice and Home Affairs
Law, 2nd edn (OUP, 2006), Ch.8.
12 P.-A. Albrecht and S. Braum, “Deﬁciencies in the Development of European Criminal Law” (1999)
5(3) E.L.J. 293, 297. See also A. Weyembergh, “Approximation of Criminal Laws, the Constitutional Treaty
and the Hague Programme” (2005) 42 C.M.L. Rev. 1567, 1571.
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28 A longitudinal study of the Third Pillar
that lie within its legitimate areas of competence.13 Consequently, Community law has
proved to be a relatively potent catalyst in promoting the protection of shared economic
assets such as the Union’s budget and the Single Market,14 but not in addressing the
problem of crime more generally. Contrasting with this subdued, but stable, background
of a relatively selective and opportunistic method of construction is the historical
mushrooming of fragmented intergovernmental initiatives that have amalgamated into
the Third Pillar.
Competence under the Third Pillar
The Third Pillar was formally created by the TEU and substantially amended by the
Treaty of Amsterdam in 1999. However, it was not invented from scratch in 1993, but
was forged out of the pre-existing Trevi structure. Therefore, the ﬁrst phase of Third
Pillar development occurred prior to the Union’s foundation, and so before “justice and
home affairs”, including matters of criminal law, were incorporated within the Treaty
framework.
Trevi (Terrorism, Radicalism, Extremism, Political Violence) was set up by the Rome
European Council in 1975, and was an intergovernmental network of national ofﬁcials.
Initially dedicated to combating terrorism,15 by the early 1990s its remit and organisational
structure had grown to cover a wider range of crime control and public order matters.16
When the TEU entered into force, these existing arrangements were absorbed into
the single institutional framework of the Union. Accordingly, Trevi’s organisational
infrastructure was transformed into the organisational platform of the Third Pillar17 and
its accumulated acquis became the founding contribution to what we now know as the
Third Pillar acquis.18 A similar pattern was followed with regard to competence. None of
the areas of co-operation in policing and criminal justice matters19 that was at that time
13 The consequences have the potential to be far reaching: see E. Baker, “Criminal Jurisdiction, the
Public Dimension to ‘Effective Protection’ and the Construction of Community-Citizen Relations” in A.A.
Dashwood et al. (eds), The Cambridge Yearbook of European Legal Studies Volume 4, 2001 ( Hart, 2002).
14 e.g. Regulation 974/98 on the introduction of the Euro [1998] OJ L139/1; Directive 91/308 on prevention
of the use of the ﬁnancial system for the purpose of money laundering [1999] OJ L166/77; Directive 2001/97
amending Directive 91/308 on prevention of the use of the ﬁnancial system for the purpose of money
laundering [2001] OJ L344/76. See: Simone White, Protection of the Financial Interests of the European
Communities: The Fight against Fraud and Corruption (Kluwer, 1998).
15 It is interesting that the desire to combat terrorism should have been so inﬂuential at this relatively
early juncture given that the terrorist attacks of 9/11 are commonly cited as a major catalyst for
contemporary initiatives: see, for example, the discussion by Douglas-Scott, “The rule of law in the European
Union—putting security into ‘the area of freedom, security and justice”’ (2004) 29 E.L. Rev. 219–242.
16 J. Lodge, “Internal Security and Judicial Cooperation” in J. Lodge (ed.), The European Community
and the Challenge of the Future, 2nd edn (Palgrave MacMillan, 1993), p.318; P.A. Weber-Panariello, “The
Integration of Matters of Justice and Home Affairs into Title VI of the Treaty on European Union—a Step
Towards more Democracy?” EUI Working Paper RSC No.95/32 (European University Institute, 1995), p.10.
17 Denza, The Intergovernmental Pillars of the European Union, p.76.
18 Denza, The Intergovernmental Pillars of the European Union, pp.74–75; S. Lavenex and W. Wallace,
“Justice and Home Affairs: Towards a ‘European Public Order”’ in H. Wallace, W. Wallace and M.A. Pollack
(eds), Policy-Making in the European Union, 5th edn (OUP, 2005), p.461; R. Morgan, “The Third Pillar:
An Introduction” in J. Monar and R. Morgan (eds), The Third Pillar of the European Union: Cooperation
in the Fields of Justice and Home Affairs (European Interuniversity Press, 1994), p.14.
19 They included combating drug addiction; combating fraud on an international scale; judicial co-operation
in criminal matters; customs co-operation; and police co-operation for the purposes of preventing and
combating terrorism, unlawful drug trafﬁcking and other serious forms of international crime.
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Estella Baker and Christopher Harding 29
listed in Art.K.1 TEU was new; all had already been the subject of joint action between
the Member States.20 It follows that, whereas the entry into force of the TEU appeared
to trigger collaboration in this ﬁeld, it actually marked the start of its second phase.
The introduction of the Third Pillar constituted a tangible step towards the formalisation
of co-operation. However, not all Member States were so convinced of its wisdom
as to be willing to confer relevant competence upon the Community. Had they been,
the Third Pillar would never have come into existence at all. Instead, concerns about
limitations on national sovereignty21 meant that the JHA Pillar was established on an
intergovernmental basis, which ensured that a signiﬁcant degree of control remained
vested in the Member States. Accordingly, the Council of Ministers was the dominant
institution and most of the Commission’s First Pillar powers were denied it under Title
VI TEU. Likewise, the Parliament had no decision-making authority, and the Court
of Justice was virtually excluded from having any jurisdiction.22 Complementing these
departures from the Community regime, the Treaty empowered the Union to act by
means of a distinct set of legal instruments. As a general rule, a unanimous vote of the
Council was required for adoption and, owing to their intergovernmental character, they
then had to be ratiﬁed by the Member States to take effect.23 Inevitably, this meant that
the legislative process was very inefﬁcient compared with that for Community measures
and little tangible progress was made in implementing any action that was agreed.
Entirely independently of Trevi, the three Benelux countries, France and Germany
(half of the then 10 Member States) signed the ﬁrst Schengen Agreement in 1985.24
Although also outside the framework of the Community Treaties, the project had strong
connections with the programme to establish the Single Market25 because its principal
aim was to create a common travel area by abolishing barriers to the free movement
of persons. That objective, though, carried obvious security implications, making it
necessary simultaneously to implement a package of compensatory measures to combat
crime and to control those whose movement was undesirable or positively unwanted. It
took a further ﬁve years to ﬁnalise the details, resulting in the Schengen Implementing
Convention (CISA) of 1990.26
20 Denza, The Intergovernmental Pillars of the European Union, pp.75–76.
21 See further The Intergovernmental Pillars of the European Union, pp.74–75; Lavenex and Wallace,
“Justice and Home Affairs: Towards a ‘European Public Order”’ in Wallace, Wallace and Pollack (eds),
Policy-Making in the European Union, p.461; Morgan, “The Third Pillar: An Introduction” in Monar and
Morgan (eds), The Third Pillar of the European Union, p.14.
22 TEU Arts K.3–K.6. The Court, though, did assert the right to “police” the boundary between the First
and Third Pillars: Commission v Council (C-170/96) [1998] E.C.R. I-2763; [1998] 2 C.M.L.R. 1092 and also
now Commission v Council (C-176/03) [2005] E.C.R. I-7879 and Commission v Council (C-440/05) [2007]
E.C.R. I-9097. For general discussion see M. Anderson et al., Policing the European Union: Theory, Law
and Practice (Clarendon Press, 1995), p.68; Denza, The Intergovernmental Pillars of the European Union,
p.76; Lavenex and Wallace, “Justice and Home Affairs: Towards a ‘European Public Order”’ in Wallace,
Wallace and Pollack (eds), Policy-Making in the European Union, p.462.
23 TEU Arts K.3(2), K.4(3).
24 The Schengen Agreement of June 14, 1985. For background discussion see Anderson et al., Policing the
European Union, pp.59–61; C. Fijnaut, “The Schengen Treaties and European Police Co-operation” (1993)
1 European Journal of Crime, Criminal Law and Criminal Justice 37, especially 48–49.
25 J. Lodge, “Internal Security and Judicial Cooperation” in Lodge (ed), The European Community and the
Challenge of the Future, p.320; D. O’Keefe, “The Schengen Convention: A Suitable Model for European
Integration?” (1991) 11 Yearbook of European Law 185, 186.
26 Convention applying the Schengen Agreement of June 14, 1985 between the governments of the
states of the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on
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30 A longitudinal study of the Third Pillar
Given the common subject matter and sympathy in objectives, there was considerable
scope for overlap between the activities of the Schengen states and those of the totality
of Member States operating within the framework of Trevi and, subsequently, the Third
Pillar. Nevertheless, the Schengen Zone continued to evolve in parallel with the Union
and its membership steadily expanded, partly because of the Union’s own enlargement.
By the mid-1990s, 13 of the, by then, 15 Member States had acceded to Schengen,
the exceptions being Ireland and the United Kingdom. But a complication regarding
membership had also arisen. In order to keep intact the pre-existing common travel area
of the Nordic Union, two non-EU Member States, Iceland and Norway, had also become
party to the Schengen arrangements by means of a bilateral agreement.27
Justice and Home Affairs emerged as a primary target for reform at the 1996/7 IGC.
Apparently, it was not planned that way28 but, bearing in mind the problems that were
catalogued above, it does not seem that surprising in hindsight. The resulting reforms
were so signiﬁcant that the Treaty of Amsterdam should be regarded as triggering the
third phase of Third Pillar development. The most prominent were as follows:
• The part of the Third Pillar that related to population movement was transferred
to a new Title of the Community Treaty29 and the remainder renamed “Police
and Judicial Cooperation in Criminal Matters”.
• A horizontal connection was established between the freshly severed parts
through the device of linking both Titles to a new objective, inserted into Art.2
TEU, to “maintain and develop the Union as an area of freedom, security and
justice”. Thus, Art.29 TEU, the opening provision of Title VI, proclaims that,
“without prejudice to the powers of the European Community, the Union’s
objective shall be to provide citizens with a high level of safety within an
area of freedom, security and justice”.30
the Gradual Abolition of Checks at their Common Borders of June 19, 1990. See generally Fijnaut, “The
Schengen Treaties and European Police Co-operation” (1993) 1 European Journal of Crime, Criminal Law
and Criminal Justice 37; R. Genson, “The Schengen Agreements–Police Cooperation and Security Aspects”
in P.J. Cullen and W. Gilmore (eds), Crime Sans Fronti`eres: International and European Legal Approaches,
Hume Papers on Public Policy (Edinburgh University Press, 1998), Vol.6, Nos 1 and 2; O’Keefe, “The
Schengen Convention: A Suitable Model for European Integration?” (1991) 11 Yearbook of European
Law 185; A. Woltjer, “Schengen: The Way of No Return?” (1995) 2 Maastricht Journal of European
and Comparative Law 256.
27 For further discussion see Peers, EU Justice and Home Affairs Law, pp.62–64. In the meantime,
difﬁculties with implementation sometimes meant that it took several years for the accession treaties with
new participants to come fully into force: see Woltjer, “Schengen: The Way of No Return?” (1995) 2
Maastricht Journal of European and Comparative Law 256, 258–260.
28 Monar, “Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation”
(1998) 23 E.L. Rev. 320, 321.
29 Title IV on “Visas, Asylum, Immigration and Other Policies Related to Free Movement of Persons”. For
discussion see, inter alia, J. Apap (ed.), Justice and Home Affairs in the EU: Liberty and Security Issues after
Enlargement (Edward Elgar, 2004), Part III; M. den Boer, “Justice and Home Affairs Cooperation in the
Treaty on European Union: More Complexity Despite Communautarization” (1997) 4 Maastricht Journal
310, 311–313; P.J. Kuijper, “The Evolution of the Third Pillar from Maastricht to the European Constitution:
Institutional Aspects” (2004) 41 C.M.L. Rev. 609; Peers, EU Justice and Home Affairs Law, Chs 3–6; S.
Peers, “Who’s Judging the Watchmen? The Judicial System of the ‘Area of Freedom, Security and Justice”’
(1998) 18 Yearbook of European Law 337, 351–365; N. Walker (ed.), Europe’s Area of Freedom, Security
and Justice (OUP, 2004), part two.
30 It then provides that one of the ways by which the objective is to be attained is, “by developing
common action among the Member States in the ﬁelds of police and judicial cooperation in criminal matters”.
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Estella Baker and Christopher Harding 31
• The Schengen infrastructure and acquis was absorbed into the institutional and
legal framework of the Union31 in a manner that was consistent with the new
division in competence between the Community and the Third Pillar.32
• The Commission, the Parliament and the Court of Justice were all afforded an
increased presence in Third Pillar affairs.33
• A revised set of instruments was introduced for use under the Third Pillar that
were more akin to those already provided to the Community.34 In particular, a
Third Pillar version of the directive was introduced in the guise of the framework
decision. Like a directive, it binds Member States as to the result to be achieved,
but reserves the choice of form and methods to national level. Crucially though,
unlike a directive, it cannot have direct effect.35
On the surface, these reforms were indicative of a commitment to more intensive
integration. However, consensus among the Member States that change was needed
did not translate into agreement as to exactly what form it should take.36 Therefore, the
impression of progress was won at a signiﬁcant price because the previous “relatively
simple” division between the First and Third Pillars37 was eroded and the Third Pillar
acquired features that threatened the consistency, solidarity and uniformity of the Union’s
legal order.38
First, it was necessary to accommodate the continuing mismatch between the membership
of the Union and the participants in Schengen. Therefore, the Treaty included a Protocol
to protect the right of Ireland and the United Kingdom not to be bound by the Schengen
That objective in turn, “shall be achieved by preventing and combating crime, organised or otherwise, in
particular terrorism, trafﬁcking in persons and offences against children, illicit drug trafﬁcking and illicit
arms trafﬁcking, corruption and fraud” through a speciﬁed set of means that include, “approximation, where
necessary, or rules on criminal matters in the Member States”.
31 Described as the “greatest surprise” among the Treaty of Amsterdam changes: Lavenex and Wallace,
“Justice and Home Affairs: Towards a ‘European Public Order”’ in Wallace, Wallace and Pollack (eds),
Policy-Making in the European Union, p.464.
32 Primarily between Title IV EC and Title VI TEU. For discussion see N. Bracke, “The Amsterdam Treaty
Framework with Special Reference to the Incorporation of the Schengen Acquis” in P.J. Cullen and S. Jund
(eds), Criminal Justice Co-operation in the European Union after Tampere (Bundesanzeiger, 2002); M. den
Boer, “Justice and Home Affairs Cooperation in the Treaty on European Union: More Complexity Despite
Communautarization” (1997) 4 Maastricht Journal 310, 313–314; P.J. Kuijper, “The Evolution of the Third
Pillar from Maastricht to the European Constitution: Institutional Aspects” (2004) 41 C.M.L. Rev. 609; J.J.E.
Schutte, “The Incorporation of the Schengen Acquis in the European Union” in Cullen and Gilmore (eds),
Crime Sans Fronti`eres.
33 TEU Arts 34(2), 35 and 39. For discussion of the Court’s jurisdiction see Peers, EU Justice and Home
Affairs Law, pp.365–393, 404–409.
34 TEU Art.34(2).
35 TEU Art.34(2)(b). Apparently, however, framework decisions may have indirect effect: Criminal
Proceedings against Maria Pupino (C-105/03) [2005] E.C.R. I-5285; [2005] 2 C.M.L.R. 63.
36 See, inter alia, Lavenex and Wallace, “Justice and Home Affairs: Towards a ‘European Public Order”’
in Wallace, Wallace and Pollack (eds), Policy-Making in the European Union, p.464; J. Monar, “Justice and
Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation” (1998) 23 E.L. Rev. 320,
321–322; Peers, EU Justice and Home Affairs Law, pp.7–8.
37 S. Peers, EU Justice and Home Affairs Law (Pearson Education, 2000), p.39. See also M. den Boer,
“Justice and Home Affairs Cooperation in the Treaty on European Union: More Complexity Despite
Communautarization” (1997) 4 Maastricht Journal of European and Comparative Law 310.
38 J. Monar, “Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation”
(1998) 23 E.L. Rev. 320; N. Walker, “Current Developments: Justice and Home Affairs” (1998) 47 I.C.L.Q.
231, 238.
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32 A longitudinal study of the Third Pillar
acquis.39 Secondly, contrary to the premium that has always been placed on the uniform
interpretation of Community law, an optional element was introduced with respect to the
Court’s newly acquired jurisdiction to provide preliminary rulings on the validity and
interpretation of certain Third Pillar instruments.40 Jurisdiction was made contingent upon
a declaration by a Member State, and the declaration could be made in two alternative
forms. Consequently, even where Member States have signed up, the terms of what they
have agreed to varies.41 Overall, it is little wonder that a previous commentator described
the Amsterdam reforms as embodying an “amazing range” of ﬂexibility.42
In terms of Treaty development, the story is now up to date.43 Before proceeding to
identify the long-term trends that lie embedded in this process of evolution, however,
it is appropriate to say something about the “Area of Freedom, Security and Justice”.
Swiftly portrayed as being on a par with the earlier economic projects to establish the
Single Market and the Euro in terms of its importance, words were accompanied by
deeds. The Commission and the Council of Ministers began the preparatory work to turn
ambition into reality even before the Treaty of Amsterdam entered into force44 and a
Special European Council meeting was held at Tampere in October 1999 which agreed
the ﬁrst in the series of multi-annual programmes of action that are designed to put the
Area in place. Superseded in 2004 by the current Hague Programme,45 work is already
underway to construct a third programme to follow its expiry in 2009.
The Hague Programme identiﬁes 10 areas as priorities for action. Those relating to
criminal law are the ﬁght against terrorism, migration management (which includes
strengthening the ﬁght against illegal immigration and trafﬁcking in human beings),
the ﬁght against organised crime, the guarantee of an effective European area of criminal
justice and, arguably, the full development of policies enhancing citizenship, monitoring
and promoting respect for fundamental rights.46 An interesting feature of the original
programme documentation is that it was premised explicitly on the expectation that
the Union’s competence in criminal law matters would soon be enlarged by the Treaty
39 Protocol No.2 Schengen Acquis, annexed by the Treaty of Amsterdam to the EC Treaty and EU Treaty.
40 TEU Art.35(1). This includes those rooted in the Schengen Conventions: see Criminal proceedings
against G¨oz¨ut¨ok (C-187/01 and C-385/01) [2003] E.C.R. I-1345; [2003] 2 C.M.L.R. 2, the very ﬁrst cases
in which the Court was asked for a preliminary ruling under Art.35 TEU.
41 TEU Art.35(2) and (3). Currently, 17 Member States have accepted the Court’s jurisdiction: Austria,
Belgium, the Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania,
Luxembourg, the Netherlands, Portugal, Slovenia, Spain and Sweden. Of these, only Spain has made a
declaration in the narrow form [2008] OJ C69/1.
42 J. Monar, “Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation”
(1998) 23 E.L. Rev. 320, 334. Further potential ﬂexibility is added by the “enhanced cooperation” provisions:
Arts 43–45 TEU.
43 The Treaty of Nice made minor changes to the Third Pillar that are not relevant here.
44 Commission of the European Communities, Towards an Area of Freedom, Security and Justice,
MEMO/98/55, Brussels, July 15, 1998; Council of Ministers, Action Plan of the Council and the Commission
on How Best to Implement the Provisions of the Treaty of Amsterdam establishing an Area of Freedom,
Security and Justice, 13844/98, Brussels, December 4, 1998; European Council, Presidency Conclusions of
the Tampere European Council on the Creation of the Area of Freedom, Security and Justice, October 15
and 16, 1999.
45 Council of the European Union, The Hague Programme: Strengthening Freedom, Security and Justice
in the European Union, 16054/04, Brussels, December 13, 2004 [2005] OJ C53/01.
46 Commission of the European Communities, Communication from the Commission to the Council and
the European Parliament—The Hague Programme: Ten Priorities for the Next Five Years COM(2005) 184
ﬁnal.
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Estella Baker and Christopher Harding 33
establishing a Constitution for Europe.47 Despite the fact that the Treaty was abandoned,
ofﬁcial documents suggest that the Union has found the means to press ahead with
most, if not all, of the proposed measures.48 Disregarding any issues that may arise as
to legality, the political message is clear. Not only does the construction of the AFSJ
remain the target of intensive action by the Union almost a decade after the idea ﬁrst
surfaced, but it constitutes a critical conceptual component of the Union’s ongoing vision
as to where criminal law matters sit in the scheme of its affairs.
Long-term trends, themes and patterns
Although the historical account above is heavily summarised, it is detailed enough to
disclose the existence of a number of long term trends, themes and patterns. To start,
it contradicts the common impression that collaboration in the criminal law ﬁeld only
began in 1993; in fact, Member States have been actively engaged in such co-operation
for several decades.49 That is not to suggest that the founding of the Third Pillar was
unimportant as a starting point for signiﬁcant change; just that the nature of that change
was something different. Speciﬁcally, its advent constituted the ﬁrst tangible stage in the
transition from treating criminal law matters as:
• lying at the periphery of the Union’s affairs;
• properly the subject of “traditional” intergovernmental co-operation50 outside the
Union’s formal legal and institutional framework; and
• executed as a matter of executive and administrative co-operation,
to the current state of affairs in which:
• they occupy a position at the top of the Union’s agenda;
• action is taken almost entirely within the context of the Union’s legal and
institutional framework;
• by means of a methodology that has matured towards a full embrace of the
supranational approach; and
• underpinned by the Union’s evolving constitution and commitment to the rule
of law.
This transformation can be interpreted as a genuine achievement, yet those who ﬁnd
the current arrangements satisfactory are in a rare minority. By necessary implication,
47 Council of the European Union, The Hague Programme: Strengthening Freedom, Security and Justice
in the European Union, 16054/04, Brussels, December 13, 2004 [2005] OJ C53/01; Commission of
the European Communities, Communication from the Commission to the Council and the European
Parliament—Evaluation of European Union Policies on Freedom, Security and Justice COM(2006) 332
ﬁnal. See also Commission of the European Communities, Communication from the Commission to the
Council and the European Parliament—The Hague Programme: Ten Priorities for the Next Five Years; the
Partnership for European Renewal in the Field of Freedom, Security and Justice COM(2005) 184 ﬁnal, and
the discussion in A. Weyembergh, “Approximation of Criminal Laws, the Constitutional Treaty and the
Hague Programme” (2005) 42 C.M.L. Rev. 1567.
48 See, for example, Commission of the European Communities, Communication from the Commission to
the Council and the European Parliament: Report on the Implementation of the Hague Programme for 2005
COM(2006) 333 ﬁnal.
49 Particularly if collaborative ventures that involve states outside the EU are included, co-operation in the
criminal justice ﬁeld can be argued to pre-date the founding Treaties of the Union.
50 K. Kittichaisaree, International Criminal Law (OUP, 2001), pp.4–6.
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34 A longitudinal study of the Third Pillar
they do not include the Member States themselves; otherwise the Treaty of Lisbon
would not provide the means to effect wholesale changes. From an academic perspective,
criticism tends to coalesce around two principal themes. One, to be developed below,
is the complaint that (even) more than in other ﬁelds of competence, the Union fails to
conduct its criminal law affairs in accordance with the strictures of “good governance”.
Consequently, its interventions are lacking in the desirable measure of legitimacy.51
Perhaps because the supporting arguments are so well-founded, little space has been
devoted to an alternative perspective, but regarded historically a rather more contingent
picture emerges.
As the transformation in treatment of criminal law matters has taken place, it is undeniable
that it has brought improvements in governance in its wake. These days, when the Union
acts in the criminal law ﬁeld, it complies with the principles of “openness, participation,
accountability, effectiveness and coherence”52 in a manner that was totally out of the
question in, for example, the days of Trevi or the early operation of Schengen. Yet, at
that time, there was nothing like the same degree of criticism of these arrangements as
now affects the Union’s activities. Ironically, the reason seems to lie in the very fact that
governance has improved. Both Trevi and Schengen were established under conditions
of great secrecy, a factor that was to set the cultural tone for their operations.53 Therefore,
their existence was known to relatively few and it was hard to obtain information
about their ongoing affairs, making scrutiny of any kind nigh on impossible. It is
only as their organisational structures have moved into the declared zone of Member
State collaboration, thereby becoming more visible, that a lively debate on governance
questions has become viable. Viewed this way, the fact that such a debate exists is as
much a barometer of improved circumstances as it is of continuing deﬁciency.
The other main focus of criticism in the literature is the striking imbalance between
the Union’s enthusiasm for investing in crime control and its reticence about ensuring
appropriate protections for defence rights. For example, all but one of the framework
decisions that have been adopted under the Third Pillar concern crime control in some
guise or other, the exception being an instrument to protect victims’ rights.54 Meanwhile,
a longstanding proposal for a framework decision on defence rights remains stalled in
the Council of Ministers, even though its contents have been substantially diluted in the
quest for the necessary unanimous backing for its adoption to go ahead.55
51 See, for example, Douglas-Scott, “The rule of law in the European Union—putting security into ‘the
area of freedom, security and justice”’ (2004) 29 E.L. Rev. 219.
52 Commission of the European Communities, European Governance—A White Paper COM(2001) 428
ﬁnal, p.8.
53 It has been claimed, for example, that the European Parliament only “belatedly ‘discovered”’ the
existence of Trevi: Lodge, “Internal Security and Judicial Cooperation” in J. Lodge (ed.), The European
Community and the Challenge of the Future, p.319; and that, “for a long time”, the existence of the Schengen
Agreement “was known only in select gatherings” in four of the original signatory states: Weber-Panariello,
“The Integration of Matters of Justice and Home Affairs into Title VI of the Treaty on European Union—a
Step Towards more Democracy?” EUI Working Paper RSC No.95/32, pp.16–17.
54 Framework Decision 2001/220 on the standing of victims in criminal proceedings [2001] OJ L82/1. The
exception is symptomatic of trends in broader contemporary criminal justice discourse. See also Directive
2004/80 relating to compensation to crime victims [2004] OJ L261/15.
55 European Commission, Proposal for a Council Framework Decision on Certain Procedural Rights in
Criminal Proceedings throughout the European Union COM(2004) 328 ﬁnal; Council of the European Union,
Note from the Presidency to COREPER/Council, Proposal for a Council Framework Decision on Certain
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Estella Baker and Christopher Harding 35
On the institutional side the picture is similar. Three EU agencies have been created
under the auspices of the Third Pillar. Two, Europol and Cepol (the European Police
College), facilitate police co-operation; the third, Eurojust, is concerned with co-operation
in relation to criminal investigations and prosecutions. In addition, the Commission has
a specialist unit, OLAF, that is tasked with combating fraud.56 Plainly, all of these bodies
have a remit that is linked to crime control. By contrast, there is no agency that is charged
with the safeguard of defence rights.57 The reasons for the discrepancy are many and
various, and beyond the scope of the current paper; sufﬁce it to say that they point to
a state of affairs in which the “security” limb of the AFSJ attracts greater priority for
action than the others. This is among the points that will be enlarged upon below.
The Third Pillar as a problematical site for European crime control
The Third Pillar is a strange creature. In its “present imperfect” post-Amsterdam phase of
existence, it appears to possess a transitional and intermediate identity, occupying a space
somewhere between the genuinely supranational EC and traditional intergovernmental
arrangements, such as the Council of Europe and the EU Second Pillar. Two of its
features mark it out in this way. One is the established passerelle to the Community
Pillar: the real possibility (to mix metaphors) that its subject matter might break off,
like sheets of polar ice, and ﬂow into warmer supranational waters. The second is the
quasi-supranational character of some aspects of Third Pillar organisation, already noted
and manifest in particular in the framework decision. In these two respects, from the
perspective of those in the Member States, the Third Pillar has a real legal signiﬁcance
which goes beyond intergovernmental rhetoric and political posturing. The possibility
alone of “approximation” (or harmonisation as it is sometimes termed) of national
criminal law via commonly binding framework decisions, instead of on the optional
basis of intergovernmental treaties, provides the regime with an enhanced credibility.58 In
short, once there is the requisite political will (as happened, for instance, in the aftermath
of the September 11 attacks on New York) the instrument is waiting and ready. With
the possibility of harmonised substantive criminal law rules and a growing network
of procedural co-operation, European criminal law begins to appear as a phenomenon
of substance rather than just a “working title”.59 Finally, these supranational tendencies
have been coupled with the evident political activation of AFSJ matters mentioned above,
providing elements of agenda and timetable to energise the institutional framework.60
Procedural Rights in Criminal Proceedings throughout the European Union, Paper 10287/07, Brussels, June
5, 2007.
56 The acronyms CEPOL and OLAF stand respectively for Coll`ege Europ´een de Police and Ofﬁce Europ´een
de la Lutte Anti-Fraude. OLAF was formerly known as UCLAF (Unit´e de Coordination de la Lutte AntiFraude),
set up in 1988. See further Peers, EU Justice and Home Affairs Law, pp.487–489, 535–542.
57 Although the Union has had its own Agency for Fundamental Rights since March 1, 2007, its remit
extends across the fundamental rights ﬁeld; it does not have any special responsibilities with respect to
criminal justice.
58 Note for instance the extent to which the House of Commons Scrutiny Committee was exercised about
the prospect of criminal law harmonisation under the proposed First Pillar version of AFSJ: 26th Report,
Session 2002–2003, paras 43–58.
59 Albrecht and Braum, “Deﬁciencies in the Development of European Criminal Law” (1999) 5(3) E.L.J.
293.
60 Achieved, for example, through the Council Action Plan to combat organised crime [1997] OJ C251/1,
the Tampere and Hague Programmes (discussed above) and the Millenium Action Plan on organised crime:
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36 A longitudinal study of the Third Pillar
Yet, as stated already, the emergence of this new order has produced a number of
misgivings. Such doubts have both a political and a legal character, but fuse together to
pose a number of fundamental questions relating to the whole crime control enterprise
that has become encapsulated in the Third Pillar. What is the legal identity of this regime
of EU activity in terms of its constitutional structure, legal basis and legitimacy? Whose
and what interests are being served by Third Pillar policy? And who is driving the
political and legal agenda of this Pillar? These questions may be discussed around four
main problematic issues:
• the constitutional structure of the third pillar;
• its frangible and mobile content;
• its reliance on ill-deﬁned and “orphaned” concepts;
• its low visibility and opportunity for scrutiny.
The constitutional structure of the third pillar
Instructive lessons can be drawn from a comparison of the respective constitutional
structures of the First and Third Pillars of the European Union. Although at ﬁrst sight
the Third Pillar may appear to be more easily deﬁned on account of its more limited and
speciﬁc content, on closer inspection there is a relative lack of focus which has proven
problematical.
There has never been any doubt regarding the underlying purpose of the First Pillar,
although it has evolved from the “common” to the “single market”, from the EEC to the
EC and from a free-standing Community to one pillar of a Union.61 The establishment
of a larger but single European market area and organisation, with its clearly enunciated
beneﬁts, was a well-debated and clearly-directed project. The single overriding imperative
of free movement of economic activity within that larger but deﬁned geographical space
has remained the governing concept and substantive constitutional basis for the EC.
Moreover, as a governing concept it has beneﬁted from its justiciability—the fact that the
Court of Justice has been able to supply an authoritative and legitimating constitutional
gloss through its interpretation of the EC Treaty. In time of course, this project has
evolved into something more than simply economic, encompassing policies relating
to various aspects of human mobility, individual entitlements, social protection and
environmental welfare. Yet the underlying purpose remains consistent and perhaps may
be summarised, in its most evolved expression, as the guarantee of the EC space and
of the freedoms and opportunities that are implicit in the wider and deeper space. In
more legalistic terms, the EC project is constructed around a number of prohibitions—of
activities which hinder or threaten the achievement of the project, whether they are public
or private in character. Thus, while the single market idea has triggered progressively
more integration, the content of such integration has been essentially expansive for those
within the single market area.
The Prevention and Control of Organised Crime: A European Union Strategy for the Beginning of the New
Millenium [2000] OJ C124/1.
61 For useful overviews of the evolution of the Community project, see Sionaidh Douglas-Scott,
Constitutional Law of the European Union (Longman, 2002), Ch.1; J. Weiler, “The Transformation of
Europe” (1991) 100 Yale Law Journal 2403.
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Estella Baker and Christopher Harding 37
Moreover, the means for achieving this new European space were clearly deﬁned in
the conferral and pooling of sovereign powers to a supranational entity charged with the
development and management of its regime. These transferred powers were also regulated
through a system of judicial control. Thus the EC possesses a “tight” constitutional
structure in terms of objectives, method and balance of powers. While it has always been
possible to argue about the precise substance and exercise of Community competence, it
is difﬁcult to deny that there is a constitutional law and structure of the EC.62
In contrast, the Third Pillar has never possessed such a clarity of purpose or structure,
but has always had a more reactive, more traditional and politically very different role
that is almost a kickback against the opportunities and freedoms unleashed by the bigger
European space. It addresses not so much the “good” that the EC generates, but the
problems that beset it or that it may itself have given rise to. Greater human mobility
and more potent economic ﬂows have their own darker side in the form of facilitating
transnational criminality. In some respects this was an inevitable reaction to the process
of dismantling the frontiers managed by sovereign States, and is the product of both
intended EC integration and also (since 1989) post-Westphalian, post-Cold War decline
in the regulating power of sovereign states.63 During the 1990s there thus emerged a
governmental and more broadly public concern about the dark underbelly of European
integration, post-Cold War change, and globalisation. The genie was out of the lamp and
it was assuming shapes similar to those of the international maﬁa and terrorist groups.64
The Third Pillar can in this way be seen as an attempt by Member States’ governments to
reassert control over the spectre of transnational crime. They cannot do this individually
and thus need to act together. But, on the other hand, since the task touches so
closely upon their own vital interests in maintaining political stability and security, and
the viability of their own structures, they have not wished to hand the matter over
to a supranational institution. The Third Pillar therefore represents a traditional and
conservative political methodology in its emphasis on intergovernmental processes. Its
underlying rationale is reactive rather than aspirational, restrictive rather than rightsenhancing,
and protective of “old order” political interests: hardly the stuff for a new
constitution. Indeed, on this interpretation a new constitution would (from the perspective
of at least some national governments) be best avoided as it may serve to limit the exercise
of powers across the uncertain transnational domain.
The insertion of the idea of an AFSJ in Art.29 TEU may be viewed in the same light.
Although, at ﬁrst sight, the AFSJ may look like a focal point and objective for the
Third Pillar, providing some coherence and unity, on further reﬂection it may be seen
as adding little. The provision of freedom, security and justice is the traditional function
of the modern democratic state, and again comprises a reactive rather than expansive
role. Unlike the forward-looking and developmental EC, the AFSJ objectives do not
tread new ground but express a truism of governance, stating the minimum that citizens
expect from their governments in any case. Other problematical aspects of the character
of the Third Pillar follow on from these basic observations.
62 See further Douglas-Scott, Constitutional Law of the European Union, Ch.15
63 On this see also D. Garland, “The Limits of the Sovereign State: Strategies of Crime Control in
Contemporary Society” (1996) 36(4) British Journal of Criminology 445.
64 See also Valsamis Mitsilegas, “Deﬁning Organised Crime in the EU: The Limits of European Criminal
Law in the Area of Freedom, Security and Justice” (2001) 26 E.L. Rev. 565, 566.
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38 A longitudinal study of the Third Pillar
A frangible and mobile content
What was “justice and home affairs” all about? Crudely, the answer may be: controlling
human mobility. Between the Treaties of Maastricht and Amsterdam there were two main
areas of this policy—the regulation of migration, and crime control. Post-Amsterdam, the
former has crossed the passerelle to the First Pillar, a partial65 triumph for the argument
that “visas, asylum and immigration” is better regulated as an EC issue. Crime control,
on the other hand, has remained in principle a Third Pillar, intergovernmental matter.
These developments illustrate the frangible and mobile character of Third Pillar
activity. The possibility of movement, or partial movement (in terms of Member State
participation), in or out of the range of the pillar has itself complicated and rendered
unstable the substantive content of its regime, in turn obfuscating its constitutional
objectives and coherence. Conventionally, the passerelle is seen as a device for ﬂexibility,
but with hindsight and regarded from within the Third Pillar, it is a source of instability.
The impression that results is of the Third Pillar as a kind of temporary antechamber—a
loose zone of convenience, where politically sensitive areas of policy are opportunistically
collected together for intergovernmental handling until mature enough for Community
treatment. Indeed, this appears to be the emerging history of the pillar, with a ﬁrst major
crossing of the passerelle under the Amsterdam Treaty and a ﬁnal crossing later planned
under the Constitutional and Lisbon Treaties.
Even in its present incarnation as a “crime control” regime, the Third Pillar is not clearly
distinct from the First Pillar. The boundary between the two is ambiguous because
certain crime control issues can justiﬁably be regarded as relevant to the protection of
the Single Market (e.g. money laundering,66 transnational subsidy fraud,67 the prosecution
of business cartels,68 environmental offending69). Sometimes such subject matter has
been dealt with under both pillars.70 Similarly, signiﬁcant national interest or security
limitations on common European policies have also been a long term (negative) feature
of Community policy and law making.71 In a number of ways, therefore, it is not the
content of Third Pillar activity that is distinctive, but the reason for using it instead of the
First Pillar; that is to say, Member State preference for the intergovernmental method,
discussed further below.
65 Some Member States have the option to stay out of this regime.
66 See, e.g. the Directive 91/308 on money laundering [1991] OJ L166/77.
67 On the protection of the EC against fraud, see Art.280 EC and Regulation 3289/91 ﬁxing the import
levies on cereals and on wheat or rye ﬂour, groats and meal (the PIF Regulation) [1995] OJ L312/1.
68 As “administrative” offences on the basis of Art.81 EC, but now accompanied by criminalisation of the
same cartel activity under some Member State law: see Christopher Harding and Julian Joshua, Regulating
Cartels in Europe (Oxford University Press, 2003).
69 Requiring Member States to criminalise certain kinds of activity damaging to the environment, e.g.
Regulation 259/93 on waste [1993] OJ L30/1; Commission of the European Communities, Proposal for
a Directive of the European Parliament and of the Council on the protection of the environment through
criminal law COM(2007) 51 ﬁnal (adopted by the JHA Council, October 24, 2008).
70 See Harding, “European Regimes of Crime Control: Objectives, Legal Bases and Accountability” (2000)
7 Maastricht Journal of European and Comparative Law 224, 233.
71 Such as the public policy and public security limitations under Art.39(3)EC.
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Estella Baker and Christopher Harding 39
Ill-deﬁned and “orphaned” concepts and the problem of cross-pillar interpretation
A further, related issue is the Third Pillar’s reliance on ill-deﬁned governing concepts
which are also “orphaned” in the sense of having an uncertain relationship to governing
(but also more mature and more fully worked out) concepts under the First Pillar. Article
29 TEU, laying down the goal of safety “within an area of freedom, security and justice”,
supplies a good example of such a concept. This phrase has many of the hallmarks of
politically desirable ambiguity: unimpeachable rhetoric (who would argue against any of
these values?) coupled with legal vagueness (what do they signify more precisely?). The
possibility of authoritative legal interpretation was limited in the ﬁrst phase of the Third
Pillar’s history by the general exclusion of the jurisdiction of the Court of Justice.72
However, the same phrase was transposed simultaneously to the new Title IV of the
EC Treaty, where it may be interpreted by the Court.73 Should any such Community
interpretation then inform the sense in which the term should be understood in the
context of the Third Pillar?
Any attempts at such cross-pillar interpretation are challenging, since an inquiry into the
meaning of the AFSJ and its constituent concepts leads to fundamental queries concerning
the rationale and purposes of the Third Pillar and its relationship to the Community. And
so we return to the question of constitutional foundations. Two related questions arise
in particular from this—ﬁrst, whether such terms and concepts should be interpreted
similarly or differently under the two pillars; and, secondly, whether it is the same sense
of “freedom”, “security” and “justice” that is being protected under each of the pillars.
Regarding the ﬁrst point, the issue of unity of interpretation across the three pillars of
the Union has been highlighted by the Court of Justice itself.74 In the context of the
EC, the Court has stressed the need to consider the speciﬁc objectives of the Community
system in interpreting Community measures and principles. The still unresolved question
concerns the extent to which the different pillars may be considered to have sufﬁciently
distinct objectives so as to justify some different interpretation of the same terms and
concepts. In short, is the cross-pillar vocabulary of the AFSJ similar after all? On the
one hand, Art.47 TEU safeguards the primacy of the First Pillar vis-`a-vis the other two
pillars. On the other, it could be argued that there is—in the context of legal protection
and human rights—a uniformity imperative for the whole of the European Union, based
upon Art.6 TEU, and reinforced by the appearance of the Charter of Fundamental Rights
and later by the Treaty establishing a Constitution for Europe and by the Lisbon Treaty.
On the second point, prior to the Amsterdam reforms, in the sense employed in Art.29,
neither “freedom”, nor “security”, nor “justice” had been terms of legal art under the EC
Treaty or its secondary rules. That Treaty has of course always referred to “freedom”
in the sense of the Single Market “freedoms”, and “security” in the sense of national
security as a ground for derogation, but the Art.29 package is clearly different in its
orientation, especially when read in the light of the remainder of that Article and its
objective of “providing citizens with a high level of safety”. The connotation is one of
72 See Denza, The Intergovernmental Pillars of the European Union, pp.313 et seq.; European Court of
Justice, Report on Certain Aspects of the Application of the TEU (1995).
73 EC Treaty Art.61.
74 European Court of Justice, Report on Certain Aspects of the Application of the TEU, para.4.
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40 A longitudinal study of the Third Pillar
public protection and, in so far as this language (either under Art.61 EC or Art.29
TEU) now requires interpretation, it is likely to lead the ECJ into some uncharted
territory. A key question is that of equivalence for the three governing concepts. For
instance, would Douglas-Scott’s argument that, “in the post-September 11 haste to pass
security measures, the other elements of the AFSJ—freedom and justice—have been
ignored”75 be easily justiciable as a means of ensuring equilibrium within the over-arching
concept?
Some intriguing answers to these questions have begun to appear. For instance, the
Luxembourg Courts have been bold in asserting First Pillar legal protection in the Third
Pillar domain. The most striking example is the ECJ’s ruling in Pupino that imported
the notion of “effectiveness” into the Third Pillar by stating that national courts should
interpret national rules in the light of the wording and purpose of framework decisions,
thereby enhancing the instrument’s role.76 Arguably, the audacity of this particular
judgment only serves to underline the present uncertainty surrounding the distinction
between the two pillars.
Low visibility and opportunity for scrutiny
Most of what has been said so far relates to structural and functional deﬁciencies.
Visibility and scrutiny is a more substantive critical point and is probably the most widely
debated of the Third Pillar’s problematical features. Unease has centred on a cluster of
issues: the lack of a democratic basis for third pillar measures, poor transparency, more
limited judicial and parliamentary scrutiny, and, as a consequence of all of these, a lower
level of legal protection for individual basic rights. Such concerns strike an especially
ironic note when we recall that two of the three elements of the AFSJ are “freedom”
and “justice”.
There has been a steady criticism of this aspect of the Third Pillar in academic writing
and on the part of representative and parliamentary groups.77 Two related explanatory
themes inform these critical accounts. First, there has been a sense that Third Pillar
measures have been more effectively developed in a low-visibility intergovernmental
decision-making environment. Thus Harding argued,
75 Douglas-Scott, “The rule of law in the European Union—putting security into ‘the area of freedom,
security and justice”’ (2004) 29 E.L. Rev. 219.
76 Criminal Proceedings against Pupino [2005] E.C.R. 1-5285. See also Svenska Journalistforbundet v
Council (T-174/95) [1998] E.C.R. II-2289; [1998] 3 C.M.L.R. 645 on the disclosure of documents and the
discussion in Peers, EU Justice and Home Affairs Law, pp.32–33.
77 See for instance: P.-C. M¨uller-Graff, “The Legal Basis of the Third Pillar and its Provisions in the
Framework of the Union Treaty” (1994) 31 C.M.L. Rev. 493; Monar, “Justice and Home Affairs in the
Treaty of Amsterdam: Reform at the Price of Fragmentation” (1998) 23 E.L. Rev. 320; House of Lords Select
Committee on the European Communities, 14th Report (1997–1998), HL 72 and 21st Report (1997–1998),
HL 139; Harding, “European Regimes of Crime Control: Objectives, Legal Bases and Accountability” (2000)
7 Maastricht Journal of European and Comparative Law 224; Mitsilegas, “Deﬁning Organised Crime in the
EU: The Limits of European Criminal Law in the Area of Freedom, Security and Justice” (2001) 26 E.L.
Rev. 565; Douglas-Scott, “The rule of law in the European Union—putting security into ‘the area of freedom,
security and justice”’ (2004) 29 E.L. Rev. 219.
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Estella Baker and Christopher Harding 41
“a kind of operational shadiness provides a cloak for informal action which
may thereby prove relatively effective, but from a civil libertarian viewpoint the
consequences of informal ofﬁcial action may not be desirable”.78
Secondly, the Third Pillar has been energised by security needs and the security element
within the AFSJ; a tendency that has become more pronounced since the terrorist
attacks of September 2001. Even before they occurred, Mitsilegas had referred to the
“predominance of the ‘security’ logic in the Amsterdam Treaty and the subsequent
Tampere conclusions”.79 More recently, Douglas-Scott has gone further. She suggests
that the Third Pillar has provided national governments with an attractive working
environment for the development of security policy because of the remarkable lack of
democratic controls at national and European levels.80 Such comments verge towards an
accusation that the Third Pillar has been collectively hijacked by Member State executive
organs. From that vantage point, the reforms that are envisaged under the Lisbon Treaty
are a means of rescuing Third Pillar action from this form of democratic deﬁcit by
moving it to the realm of European, rather than national, democratic legitimacy.
But, accepting that there have been real shortcomings of democratic basis, transparency
and legal scrutiny, it is necessary still to pose some more speciﬁc questions regarding
the nature of the interests to be protected by any democracy and visibility-enhancing
processes. There has been some fuzziness in the discussion of democratic basis in the
context of the European Union. Part of the problem lies in the need to clarify further
the notion of democratic policy and law-making processes and raises the more speciﬁc
question: precisely whose democratic input is restricted or insufﬁciently taken into
account? 81 If “democratic” here refers to broader public opinion, then it is questionable
how critical this is likely to be of the content of Third Pillar crime control measures.
Eurobarometer surveys, for instance, have suggested support for a “stronger” approach
to crime control,82 perhaps implying less concern about (or even hostility towards) the
provision of due process safeguards for suspects, defendants and offenders. On the other
hand, “informed” public opinion (represented, for example, by NGOs, pressure groups
and processes of parliamentary scrutiny) may well doubt the necessity for and cogency
of a number of crime control measures. The broader question of democratic basis and
consequent legitimacy remains unclear in this sense: who owns the process of testing
such legitimacy?
To the extent that it may be accepted that “informed” opinion needs to be properly
and quickly informed and to have the opportunity to challenge proposals (arguably a
78 Harding, “European Regimes of Crime Control: Objectives, Legal Bases and Accountability” (2000)
7 Maastricht Journal of European and Comparative Law 224, 238—this argument was triggered by the
UK Government’s admission to the House of Lords Select Committee that it preferred to work within the
environment of the Third Pillar.
79 Mitsilegas, “Deﬁning Organised Crime in the EU: The Limits of European Criminal Law in the Area
of Freedom, Security and Justice” (2001) 26 E.L. Rev. 565, 580.
80 Douglas-Scott, “The rule of law in the European Union” (2004) 29 E.L. Rev. 219, 221.
81 See Thomas Christiansen, “The Limits of Legitimating European Integration” (1997) 8 Irish Studies
International Affairs 35, 47; and also Monar, “Justice and Home Affairs in the Treaty of Amsterdam:
Reform at the Price of Fragmentation” (1998) 23 E.L. Rev. 320.
82 A survey conducted in 2003 also found that 71% of respondents supported the proposition that policy
on the prevention and ﬁght against crime would be more effective if it were decided at EU, rather than
national, level: Flash Eurobarometer 156, Justice and Home Affairs (March 2004).
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42 A longitudinal study of the Third Pillar
persuasive conception of legitimacy83), then the crucial issue becomes one of access to
policy initiatives and procedures relating to the adoption of measures, and information
regarding their operation.84 It is clear that in this regard the role of representative NGOs
and parliamentary bodies is of central importance. In particular, the European Parliament
and national parliamentary committees are potentially very effective sites for scrutiny.
They are themselves accessible to wider informed opinion, especially pressure groups
and NGOs, and may act as a ﬁlter for this latter level of surveillance. Moreover,
assuming that such parliamentary scrutiny is alert and efﬁcient, it is possible that it
may inﬂuence the policy and law making processes (i.e. within the Council) within
the Third Pillar. But it is not easy to judge the effectiveness of this form of scrutiny.
On the one hand, the vigilance and energy of national parliaments is likely to vary
as between the Member States. On the other, if even a minority can demonstrate the
standard of scrutiny carried out, for instance, by the UK House of Lords Select Committee
on the European Union, that may prove overall to be fairly effective at the European
level.
On the whole, the evidence to date is that Third Pillar activities have proven relatively
impenetrable to parliamentary examination. For example, at ﬁrst sight it appears that
the adoption of the framework decisions on the European Arrest Warrant and common
deﬁnition of terrorism was materially inﬂuenced by parliamentary intervention. Both
measures were given considerable political momentum following the September 11
attacks on New York and a strict timetable was set within the Council for their
adoption by December 2001. In the event, agreement was not reached at the JHA
Council of December 6–7 and the “proclamation” of the two measures at the Laeken
Council on December 14–15 was in fact a “provisional agreement”. This was in
part due to a requirement to re-consult the European Parliament and to a number of
parliamentary scrutiny reserves made by some national parliaments.85 But what was
achieved in this instance appears on closer examination to have been hard-going due
to the combination of a short time-scale and other factors that impeded meaningful
discussion.86
More generally, however, the ability of even an alert and informed parliamentary scrutiny
body to penetrate Third Pillar activity might be doubted. Back in 1998, the House of
Lords Select Committee87 noted that complex working practices had developed that made
it difﬁcult to keep track of business transacted under the Third Pillar.88 The same report
observed the signiﬁcance of low-key, informal, practical co-operation which has been
promoted and facilitated in this forum, and there was evidence that the pattern of work
83 See, e.g. Giandomenico Majone, “Europe’s ‘Democratic Deﬁcit’: the Question of Standards” (1998)
4 E.L.J. 5 and especially his argument at p.28 that the appropriate criteria for assessing the legitimacy
of European Community policy are not so much, or only, the tests of popular or majority support and
approval but also more “outcome-oriented” factors of “expertise, procedural rationality, transparency and
accountability by results”.
84 For a pertinent illustration, see (1996) (March–April) Statewatch 22–23 and (1996) (May–June)
Statewatch 1, 21–22.
85 See the House of Lords Select Committee on the European Union, 16th Report, February 26, 2002.
86 House of Commons Select Committee on European Scrutiny, 33rd Report, Democracy and Accountability
and the Role of National Parliaments.
87 House of Lords Select Committee, 15th Report, February 17, 1998.
88 House of Lords Select Committee, 15th Report, para.5.
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Estella Baker and Christopher Harding 43
was gradually changing from the formation of legislative texts to the discussion of
operational matters.89 Further insights derive from the views expressed on the impact
of the Joint Action on organised crime,90 a “soft law” measure adopted under the
Third Pillar during its ﬁrst JHA incarnation. The Home Ofﬁce conﬁrmed that efforts
to implement the relevant Action Plan had dominated its Third Pillar work,91 and what
it was referring to was ground-level administrative action. In this sense, therefore, Third
Pillar initiatives may be taken forward, but in a way that is not easily visible to any body
charged with the scrutiny of legal developments. Moreover, the actual impact of “soft”
measures such as recommendations and the earlier Third Pillar joint actions ought not to
be under-estimated. As non-binding legal texts, they may receive less attention compared
to other measures. Furthermore, being “soft”, they may be more easily adopted and then
implemented without much fanfare.
In such ways, therefore, Third Pillar activity has not proven to be easily visible and so
subject to effective scrutiny, even when there is considerable will to carry out the latter,
at either national or European levels. Consequently, there have been enduring grounds
for concern.
Lisbon: the collapse of the Third Pillar and signs for the future
The Lisbon reforms
Like the abortive Constitutional Treaty before it, two areas in which the Treaty of Lisbon
would make far reaching changes are the Third Pillar and the protection of fundamental
rights. The key points for present purposes are as follows92:
• it would remain an objective of the Union to “offer its citizens an area of
freedom, security and justice without internal frontiers”,93 and the Treaty would
state explicitly that this is a policy area in which the Union shares competence
with the Member States94;
• the Third Pillar would be reunited with rest of the original JHA Pillar within
a new Title of the TFEU on the AFSJ, thereby introducing the supranational
method into those parts of the new Title that are currently housed in Title VI
TEU95;
89 In its evidence, the Home Ofﬁce had suggested to the Committee that such practical co-operation was
“probably more important” than the number of legal texts produced: House of Lords Select Committee, 15th
Report, para.22.
90 Joint Action on organised crime [1997] OJ C251/1. For more detailed discussion of this measure, see
Mitsilegas, “Deﬁning Organised Crime in the EU: The Limits of European Criminal Law in the Area of
Freedom, Security and Justice” (2001) 26 E.L. Rev. 565.
91 House of Lords Select Committee, 15th Report, para.14.
92 For fuller discussion see House of Lords European Union Committee, The Treaty of Lisbon: An Impact
Assessment, 10th Report of Session 2007–08, Stationery Ofﬁce, 2008, HL Paper No.62; Steve Peers, “EU
Criminal Law and the Treaty of Lisbon” (2008) 33 E.L. Rev. 507.
93 TEU Art.3(2).
94 TFEU Art.4(2)(j).
95 TFEU Pt 3 Title V.
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44 A longitudinal study of the Third Pillar
• consistent with that change, the Union would act by means of the instruments
that have hitherto only been available to the Community96; and there would be
a commensurate extension of the jurisdiction of the Court of Justice97;
• fundamental rights protection would be improved as the Charter of Fundamental
Rights would become fully justiciable and the Union would acquire the
competence to accede to the European Convention on Human Rights.98
All told, this amounts to a signiﬁcant package of reforms which furthers the long-term
trends that were identiﬁed previously and has the capacity to trigger a new, fourth,
phase in the development of the Union’s competence. However, its impact threatens to
be blunted, if not undermined, by an even more “amazing range” of ﬂexibility99 than
was permitted by the Treaty of Amsterdam, tangentially raising the question of whether
“ﬂexibility” is itself a feature that is becoming an embedded trend of integration in this
ﬁeld.
Both the arrangements to accommodate the mismatch between the participants in
Schengen100 and membership of the Union, and also provision for “enhanced cooperation”
within the framework of the Treaties,101 would continue. But in addition, certain Member
States have negotiated individual arrangements regarding the application of certain parts
of the Treaty to them. Under one Protocol, the AFSJ Title does not apply to Ireland
or the United Kingdom, but each is able to opt into measures that are adopted under
the Title’s provisions; similar provision is also made for Denmark but by means of a
separate Protocol. A third Protocol, which applies to the United Kingdom and to Poland,
is designed to prevent the Treaty from being used as a basis for creating newly justiciable
rights with respect to the Charter of Fundamental Rights. Taking these arrangements
together, it is obvious that the Treaty reforms will do nothing to make the Union’s
criminal law affairs any less complex than at present. How successfully though would
it address the current shortcomings of the Third Pillar that were identiﬁed earlier on in
this paper?
Will the Lisbon reforms address the problems of the Third Pillar?
Constitutional structure
Although tempered by the complex of ﬂexibility arrangements, the Lisbon reforms would
go some way to addressing the issues to which the current format of the Third Pillar
gives rise. Merely by virtue of the transition from intergovernmental to supranational
method, the means through which the Union acts would be clariﬁed and the potential for
marked improvements in democratic and judicial control would be created. Furthermore,
96 TFEU Art.288.
97 TFEU Pt 6 Title I Ch.1 Section 5.
98 TEU Art.6 and the Protocol relating to Art.6(2) of the Treaty on European Union on the Accession of
the Union to the European Convention on Human Rights and Fundamental Freedoms.
99 Monar, “Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation”
(1998) 23 E.L. Rev. 320, 334.
100 Protocol on the Schengen Acquis Integrated into the Framework of the European Union; Protocol on
the Position of Denmark.
101 TFEU Pt 6 Title III.
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Estella Baker and Christopher Harding 45
the Treaty would enhance the roles of the European and national Parliaments,102 thereby
promising to improve democratic accountability. What is more debateable is the extent
to which the Treaty has the capacity to clarify the constitutional purpose and objectives
of the Union’s interventions in the criminal law sphere. Would they remain essentially
reactive in nature? Or would the rejuvenated legal environment provide the impetus for
adopting a more proactive approach that could underpin the achievement of something
more ambitious; in particular, could it lead to the establishment of a genuine AFSJ across
the Union’s territories?
On one view, the answer would appear to be negative. Not only can it be argued that
criminal law is inherently negative and reactive in nature, but certain of the factors
that lend this same character to the Third Pillar would necessarily remain unaffected by
the new Treaty: the need to combat the undesired consequences of broader integration
processes or to respond to the pressures being created by globalisation, for example.
Accordingly, there are at least some grounds for assuming that the present security bias
would continue.
Matters do not look quite so clear cut though if the question is approached from a
broader constitutional perspective that regards criminal law as prominent amongst the
set of cultural, political and social institutions through which the governance relationship
between citizens and state is constructed.103 From this stance, the explanation for the
way that the Third Pillar has developed to date owes more to the uncoordinated and
incoherent way in which the Union’s criminal law competence is distributed across the
Treaties, which acts as a barrier to the fulﬁlment of its natural constitutional role, than to
the innate character of criminal law itself. Not only does this fragmentation encourage the
negativity that was criticised above, but it hinders the development of any kind of holistic
vision (not to mention debate) as to the proper purposes and parameters of the Union’s
evolving criminal jurisdiction. Furthermore, any impetus for such a discussion that might
have been provided by the Union’s (theoretical) obligation to respect fundamental rights
and the constitutional traditions of the Member States is also almost entirely blocked
by the current distribution of competences under the Treaties. In a context where the
Union’s legal regime to protect fundamental rights is widely regarded as inadequate,104
its deﬁciencies with respect to the Third Pillar are particularly acute.105 As for the Member
States, the pivotal role of the Council with respect to Third Pillar affairs acts as a barrier to
democratic accountability at national level. In short, even absent a wider political context
that has served to push security concerns to the top of the Union’s policy agenda, these
structural factors would have been liable to have a similar effect.
Without in any way contradicting that conclusion though, it should be noticed that
the version of “security” that is being promoted is a limited and obvious one that
is strongly associated with the administrative and institutional (re)organisation of the
exercise of oppressive power. Admittedly, coordinated measures to address issues of
102 See Art.69 TFEU on the role of national parliaments and the use of co-decision as the “ordinary
legislative procedure”: Art.294 TFEU.
103 Such an understanding may help to explain why certain Member States have proved particularly reticent
about pooling sovereignty in the crime ﬁeld.
104 See, for example, A. Williams, European Union Human Rights Policies: A Study in Irony (OUP, 2004).
105 See, for example, S. Peers, “Human Rights and the Third Pillar” in P. Alston (ed.), The EU and Human
Rights (OUP, 1999).
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46 A longitudinal study of the Third Pillar
common concern, and efforts to harmonise national rules or to promote their mutual
recognition so as to facilitate the free ﬂow of criminal justice across borders, may be
highly beneﬁcial as far as the efﬁcient management of the Union’s criminal justice space
is concerned, but security can also be understood in a deeper social, structural and
systemic sense.
In this more conceptual guise, it encapsulates notions of social and political good such as
the promotion of a positive state of being and welfare, both psychological and physical;
sensations of safety and stability; the ability to exercise freedom of choice and of speech
without fear of recrimination; conﬁdence in individual, collective and cultural identities;
and freedom from abuse and mistreatment, including that at the hands of the state itself.106
Seen through this liberal-democratic lens, the delivery of security through criminal justice
looks much more convincingly like a constitutional concept which, properly to function,
must be subject to an appropriate scheme of checks and balances to ensure that it does
not start to trump the very cultural, economic, political and social interests that it is
meant to protect. This is a vision that sits well with the nature and ethos of the Union
as portrayed by the current and prospective Treaties.107 Furthermore, it supplies a line
of reasoning that both justiﬁes the objective to transform the Union into an “Area of
Freedom, Security and Justice” as a coherent constitutional ambition, and highlights the
intrinsic importance to the integration project as a whole of the implicit mission to fuse
the pursuit of “limited and obvious” security interests with the other two elements. In
other words, security in a “deep” sense is dependent upon the nurture of freedom and
the guarantee of justice (both substantive and procedural), as well as upon measures that
are explicitly designed directly to respond to threats to assets, interests and values. If,
then, the argument is that, as they currently stand, the Treaties are liable to thwart the
ambition to form the Union into an AFSJ in a true, constitutional sense, the question
becomes whether the project would fare any better in the light of the reconﬁguration that
would occur as a result of the Lisbon reforms?
Although the substantive content of the criminal law provisions that would form part of
the AFSJ Title does not differ dramatically from those that are already found in the TEU,
their operational context certainly does. In addition to their presence within a “tighter”
constitutional structure, with its clarity of methods and its attendant checks and balances,
their location within the TFEU would make them newly proximate to the measures that
now govern the Community, and subject to a common legal regime. Added to these
novelties, the effect of making the Charter of Fundamental Rights justiciable and, in due
course, of accession to the European Convention on Human Rights, would be to render
the Union under an obligation to ensure that relevant policies and practices comply with
applicable fundamental rights’ guarantees.108 Subject, of course, to the special rules that
would apply to certain Member States, this package of reforms ought to provide a far
more auspicious set of conditions for turning the Union into an AFSJ in the “deep”
constitutional sense than exists at present.
106 For a conceptual discussion of “security” see: L. Zedner, ‘The Concept of Security: An Agenda for
Comparative Analysis’ (2003) 23 Legal Studies 153.
107 See the current Art.6 TEU and the prospective, post-Lisbon Art.2 TEU.
108 In addition to the generic changes that have already been mentioned, Art.67(1) TFEU, the opening
provision of the AFSJ Title, states that the area shall be constituted “with respect for fundamental rights and
the different legal systems and traditions of the Member States”.
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Estella Baker and Christopher Harding 47
Whether or not this potential would actually be realised, however, would depend upon
political will and vision, on the one hand, and judicial appetite on the part of the Court
of Justice for assimilating the AFSJ into the body of existing Community policies, on
the other.109 Given the political sensitivities that continue to surround the prospect of the
Union’s continuing development of competence in the criminal law ﬁeld, it is probably
unrealistic to anticipate any rapid political seizure of initiative to capitalise upon the new
Treaty capacity. But it is possible that the Court of Justice might use its accumulating
bodies of case law in the ﬁeld of “Community criminal law” and under the Third Pillar
as a basis for adopting a role that is more pioneering.110
Frangible and mobile content
As three Member States have negotiated special arrangements to prevent the new AFSJ
Title of the TFEU from applying automatically to them, it seems highly unlikely that the
Treaty of Lisbon would fully resolve those difﬁculties that arise from the Third Pillar’s
frangible and mobile content, and associated instability. While the majority now wish
to provide an emphatic and enduring answer to the doubts that surround the Union’s
involvement in criminal law matters, it seems that a minority do not. Furthermore,
this lack of unanimity is not the only source of instability that has the potential to
distort the smooth and consistent operation of the regime that would be put in place
by the Lisbon Treaty. As noted above, the problematic issue of the mismatch between
Union membership and participation in Schengen remains unresolved111 and the TFEU
would carry on the tradition of including a dedicated set of provisions which permit
“enhanced cooperation”.112 Therefore, albeit subject to certain procedural conditions, it
will remain an option for sub-groups of Member States to embark upon criminal law
integration at a faster pace than others within the conﬁnes of the Treaty framework. Just
as they have done ever since the Treaty of Amsterdam entered into force, both of these
attempts at reconciling consistency and solidarity, on the one hand, with ﬂexibility, on
the other, are liable to provoke tensions and uncertainty. Moreover, similar concerns
arise from another source that is wholly external to both the current and prospective
Treaties.
On two relatively recent occasions separate sub-sets of Member States have embarked
upon brand new intergovernmental initiatives within the JHA ﬁeld. In the one case, the
109 This might be conceptualised as a “line drawing” issue. As one commentator has recently pointed
out, politics and law do not have to ride in tandem when it comes to performing this task: see M.G. Ross,
“Effectiveness in the European Legal Order(s): Beyond Supremacy to Constitutional Proportionality” (2006)
31(4) E.L. Rev. 476.
110 What, for example, are the implications of the Lisbon reforms for such decisions as Commission v
France (C-265/95) [1997] E.C.R. I-6959 and Criminal Proceedings against Pupino [2005] E.C.R. I-5285?
111 Exacerbated since 2004 by a further association agreement with Switzerland: see further Peers, EU
Justice and Home Affairs Law, pp.63–64.
112 TFEU Pt Six Title III.
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48 A longitudinal study of the Third Pillar
result was the so-called Pr¨um Convention113; in the other, it was the formation of the socalled
“G6 group”.114 Both occurred outside the framework of the Treaties and regardless
of the existing enhanced co-operation provisions. Although work is now proceeding to
absorb the substance of the Pr¨um Convention into the fabric of the Union, meaning that
its external existence will be short-lived, this implies that even those Member States that
propose to be governed by the new AFSJ Title have not lost their taste for (conventional)
intergovernmentalism. Therefore, it is impossible to be certain that further, similarlyfounded
initiatives will not be launched in future.
A further problem arises with regard to the forum of the G6 because of its potential
to act as a vehicle for subverting the democratic features (such as they are) of the
Union’s decision-making. Before the 2007 enlargement the G6 countries accounted for
three quarters of the Union’s population.115 In its aftermath, that proportion will not
have been disturbed much because the combined populations of Bulgaria and Romania
are relatively small. Therefore, even under the current Treaties, when unanimity is still
required within the Council for most Third Pillar measures to be adopted,116 if the six
largest Member States act in concert, they can bring very considerable weight to bear
in negotiations.117 To add to that concern, there is a risk that they may be tempted to
cultivate G6 meetings as a rival environment to that of the Union for the development
of policy. Moreover, such fears are hardly allayed by the fact that, thus far, the G6
participants have replicated the early culture of Trevi and of Schengen and pursued
their activities in conditions of secrecy that lie outside the conﬁnes of any kind of
democratic or judicial accountability.118 This may make their meetings an attractive
tactical setting for formulating commonly agreed proposals that are then propagated
so as to circumvent any evolving agenda of the twenty seven Member States as a
whole.119
Following the Lisbon reforms, these dangers might well be exacerbated. Although a
unanimous vote of the Council would still be required for some sensitive decisions under
the AFSJ Title, most would be governed by the co-decision procedure120 and need only a
qualiﬁed majority vote by the Council to go ahead.121 Therefore, although the six122 could
113 Council of the European Union, Note from the Council Secretariat on the Pr¨um Convention signed in
Pr¨um, Germany on May 27, 2005, Paper 10900/05, Brussels, July 7, 2005. The ﬁve initial signatories were
Austria, Belgium, Germany, Luxembourg and the Netherlands: House of Lords European Union Committee,
Behind Closed Doors: the Meeting of the G6 Interior Ministers at Heiligendamm, 40th Report of Session
2005-06, Stationery Ofﬁce, 2006, HL Paper 221, para.16.
114 Namely, France, Germany, Italy, Poland, Spain and the United Kingdom: see generally House of Lords
European Union Committee, Behind Closed Doors.
115 House of Lords European Union Committee, Behind Closed Doors, para.1.
116 TEU Art.34(2).
117 House of Lords European Union Committee, Behind Closed Doors, para.6.
118 For damning criticism of this aspect of the G6 arrangements see House of Lords European Union
Committee, Behind Closed Doors, Foreword and Ch.1. A second, follow up report is slightly less critical:
House of Lords European Union Committee, After Heiligendam: Doors Ajar at Stratford-upon-Avon, 5th
Report of Session 2006-07, Stationery Ofﬁce, 2007, HL Paper No.32.
119 House of Lords European Union Committee, Behind Closed Doors, para.7.
120 TFEU Arts 289 and 294.
121 TEU Art.16(3) would in future declare that: “The Council shall act by a qualiﬁed majority except
where the Treaties provide otherwise.”
122 There is scope for complication here because of the unique position of the UK, which is a member
of the G6 but has negotiated a Protocol to permit it selectively to “opt in” to measures adopted under the
AFSJ Title.
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Estella Baker and Christopher Harding 49
not force a measure through by acting alone,123 the task of securing sufﬁcient support to
ensure the Council’s backing would become easier than it is now. All-in-all, the advent
of the G6 group represents a signiﬁcant retrograde step in terms of the challenge that
it presents to the stability of the present Third Pillar and to the prospective AFSJ Title,
should it come into being.
Reliance on ill-deﬁned and “orphaned” concepts
The Lisbon reforms would resolve some of the conceptual issues that afﬂict the
Third Pillar. For example, it appears from the English language version of the
consolidated Treaties that some of the drafting has been tidied up in ways that may
be beneﬁcial.124
Secondly, the TFEU would in future place an explicit duty upon the Union to “ensure
consistency between its policies and activities”.125 Therefore, even if the collapse of
the Pillar structure did not imply that discussion of cross-Pillar interpretation will
become redundant, surely such a debate could not have purchase following the Lisbon
Treaty’s entry into force. Furthermore, even under the present Treaties, recent decisions
of the Court of Justice can be read to mean that, at least as far as the Court is
concerned, unity of interpretation is the name of the game.126 This leaves as the
principal remaining issue the question of equivalence between the AFSJ’s three governing
concepts.
It has already been suggested that the Lisbon reforms might encourage a better balance
between the constituent elements of “freedom”, “security” and “justice”. Adding to those
reasons that were previously cited is the further one that the merger of the First and
Third Pillars should trigger a convergence between the case law that the Court has
developed under these, hitherto separate, parts of the Union’s structure. This is signiﬁcant
because, when it comes to “Community criminal law”, the Court has a respectable track
record of respecting tenets and principles that criminal lawyers tend to hold dear127
and of applying Community law doctrines in a manner that comes close to reinventing
them128 or to achieve broader goals of criminal justice.129 Although the signiﬁcance of
123 The rules governing qualiﬁed majority voting are set out in Art.238 TFEU.
124 For example, Art.67 TFEU (the opening provision of the AFSJ Title) provides that the Union “shall
endeavour to ensure a high level of security” rather than the “high level of safety” that is mentioned in
Art.29 TEU, heading off potential discussions as to whether security and safety are synonymous. Of course,
such potential for argument may not exist in all ofﬁcial languages of the Union.
125 TFEU Art.7.
126 See, for example, Pupino (C-105/03) [2005] E.C.R. 1-5285; Commission v Council (C-176/03) [2005]
E.C.R. I-7879; Commission v Council (C-440/05) [2007] E.C.R. I-9097.
127 For example, the guarantees of legal certainty and non-retroactivity that are provided by Art.7 ECHR
(and Art.49 of the Charter of Fundamental Rights): Pubblico Ministero v Ratti (148/78) [1979] E.C.R. 1629;
[1980] 1 C.M.L.R. 96; Ofﬁcier van Justitie v Kolpinghuis Nijmegen BV (C-80/86) [1987] E.C.R. 3969;
[1989] 2 C.M.L.R. 18; Criminal Proceedings against Arcaro (C-168/95) [1996] E.C.R. I-4705; [1997] 1
C.M.L.R. 179 (and Pupino [2005] E.C.R. I-5285 under the Third Pillar).
128 For example, Criminal proceedings against Calfa (C-348/96) [1999] E.C.R. I-11; [1999] 2 C.M.L.R.
1138 (in penological terms, conﬁrming the preference for “special”, rather than “general” incapacitation);
Criminal proceedings against Skanavi (C-193/94) [1996] E.C.R. I-929; [1996] 2 C.M.L.R. 372 (implying
that a principle akin to “fair labelling” is inherent in Community law).
129 For example, Criminal proceedings against Bickel (C-274/96) [1998] E.C.R. I-2629; [1999] 1 C.M.L.R.
348 and Cowan v Tresor Public (C-186/87) [1989] E.C.R. I-195; [1990] 2 C.M.L.R. 613, applying the
prohibition on discrimination on the grounds of nationality.
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50 A longitudinal study of the Third Pillar
relevant decisions should not be exaggerated, they suggest that, through the operation
of its fundamental principles, there is some innate capacity within Community law
to achieve a better balance between law enforcement and competing interests than is
resulting currently from the Union’s legislative programme of measures to establish the
AFSJ.
Low visibility and opportunity for scrutiny
The effect of the Lisbon reforms regarding visibility and scrutiny would be mixed. On
the positive side, because the supranational method is inherently more open than the
intergovernmental method of the Third Pillar, the merger with the Community should
bring about greater transparency. Nor would that be the sole gain. In a number of ways,
the Treaty would shift the centre of gravity of control over Third Pillar matters away
from Member States’ executive organs by placing the exercise of competence under more
effective supervision from the Union’s legislative and judicial arms. These include the
move to make co-decision the norm, the new role for national parliaments in monitoring
compliance with subsidiarity,130 the extended jurisdiction of the Court, justiciability of
the Charter of Fundamental Rights, and the introduction of ﬂanking measures that are
designed to shore up fundamental rights protection.
On the negative side, however, these gains would be off-set by the increased complexity
of the new ﬂexibility arrangements which contradict the general improvements in
transparency and in accountability. There is also the troubling signal that has been sent
by the advent of the Pr¨um and G6 initiatives, both of which buck the long-term trends
towards greater formalisation and a growing emphasis upon the principle of legality in
the conduct of the Union’s crime control affairs. Individually, each also raises further
legitimacy concerns. The danger that the G6 might become a forum for subverting the
Union’s AFSJ agenda has already been noted. Regarding Pr¨um, the problem is different.
Just as with Schengen before it, the methodology that the small number of initial signatory
states adopted in seeking the incorporation of the Convention’s contents into the Union’s
acquis was fundamentally undemocratic. In essence, all Member States will become
bound by terms that they have not had a genuine opportunity to inﬂuence.131 As with the
G6, this is fundamentally subversive of the Union’s values and processes.
Finally, there is the further issue that there is no logical connection between improvements
in legitimacy at the level of the Union and perceived improvements “on the ground”.
Perspectives on such matters as the appropriate content of criminal law and desirable
punishment levels have a signiﬁcant cultural content and are therefore variable as between
communities. If not respected, problems such as loss of trust and decreased acceptance
of the legitimacy of relevant measures are almost bound to arise. The opening provision
of the AFSJ Title of the TFEU promises that the Union “shall. . . respect. . . the different
legal systems and traditions of the Member States”.132 However, steering an unblemished
course between the policies and practices that the Union would like to see implemented
from its vantage point at macro level and those which individual, regional, and even
130 TFEU Art.69.
131 House of Lords European Union Committee, Behind Closed Doors.
132 TFEU Art.67(1).
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Estella Baker and Christopher Harding 51
national, communities may wish to pursue is liable to require a high degree of dexterity.
This is partly because the nature of the challenge extends beyond the parochial affairs of
the EU and has dimensions that touch upon a deeper set of issues that affect contemporary
criminal justice debate more generally. These include, for example, the trend towards
“democratisation” across a wide variety of public policy domains that is said to be
associated with globalisation133 and the vexed consequential question of who has the
superior claim to ownership of criminal justice policy: elites and professionals, whose
case is predicated upon scientiﬁc evidence, or the electorate at large, whose rival claim
derives from the utilitarian “common sense” that is “public opinion”.
The future in the absence of ratiﬁcation
At the time of writing it is a moot point whether the Lisbon Treaty will enter into force.
Therefore, it is worth considering brieﬂy what the future might look like in its absence
or that of any alternative package of reforms that would have a similar impact on the
Third Pillar.
On this scenario, the Treaty framework would remain static, creating a natural expectation
that the current set of problems would simply be perpetuated. However, there are reasons
to think that the evolutionary story that has been traced here would not come to an
abrupt end. One is the potential for the Court of Justice to make further contributions
to the developing body of Third Pillar law. Judging from the recent inﬂux of relevant
cases, the full extent and potency of the Union’s powers in the criminal sphere under
the existing Treaties has not yet been fully established.134 Aside from this, it is evident
that the Union remains committed to its ambition to construct the AFSJ, and it is in
this context that the determination of the Union to press on with implementation of the
Hague Programme135 despite the demise of the Constitutional Treaty is so telling.136
Provided the political will is there, and the fact that preparatory work to draw up
the next Programme began as early as 2007 provides compelling evidence that it is,
integration in the crime control ﬁeld will continue to intensify, with or without the
Lisbon reforms. In short, the Union’s gaze is in any event already shifting to 2010
and beyond. Meanwhile the prospects for remedying the defects in the Third Pillar that
have been identiﬁed here do not look terribly promising in the absence of further Treaty
reform.
Regarding constitutional structure, theoretically it would be possible to merge the Third
Pillar acquis with that of the Community by invoking the existing “passerelle” clause
133 See further, inter alia, E. Baker and J.V. Roberts, “Globalization and the New Punitiveness” in J. Pratt
et al. (eds), The New Punitiveness: Trends, Theories, Perspectives (Willan, 2005); I. Loader and R. Sparks,
“Contemporary Landscapes of Crime, Order and Social Control—Governance, Risk and Globalisation” in
M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology, 3rd edn (OUP, 2002).
134 See, for example, the controversial rulings in Pupino [2005] E.C.R. 1-5285, and in Commission v
Council (C-176/03) [2005] E.C.R. I-7879 which were discussed above.
135 Council of the European Union, Note from the General Secretariat to Delegations on the Hague
Programme: Strengthening Freedom, Security and Justice in the European Union [2005] OJ C53/1.
136 Commission of the European Communities, Communication from the Commission to the Council and
the European Parliament, The Hague Programme: Ten Priorities for the Next Five Years; The Partnership
for European Renewal in the Field of Freedom, Security and Justice COM(2005) 184 ﬁnal, para.2.2.
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52 A longitudinal study of the Third Pillar
to transfer the provisions of Title VI TEU to the EC Treaty.137 Politically however,
especially having been doubly rejected as a manoeuvre to be executed through formal
Treaty reform,138 such a course of action would be likely to prove so contentious
as to be tantamount to impossible. Therefore, the Pillar would be liable to remain
as a destabilising inﬂuence on the Union’s affairs. Furthermore, unless the Court
of Justice managed to acquire sufﬁcient purchase over its operation as to start to
correct the imbalance in favour of law enforcement and the promotion of security,139
it would also retain its reactive and negative character. That means too that it would
continue not to fulﬁl its potential constitutional role in building robust relations with
citizens.
More optimistically, the failure to implement the Lisbon Treaty would be far less
detrimental when it comes to tackling the problems that are associated with the illdeﬁned
and “orphaned” concepts upon which the Third Pillar is built. Again, the Court
has a role to play here, and it has already been noted that recent judgments suggest it
is concerned to promote unity of interpretation as between the First and Third Pillars.140
Key policy documents that relate to the AFSJ are also relevant. It is notable that, dating
as far back as the Commission’s initial Memorandum on the AFSJ,141 the practice has
developed of differentiating those aspects that relate to “freedom”, from those that relate
to “security”, from those that relate to “justice”. Although this could be regarded as a
mere matter of presentation since the different elements clearly inter-relate and interact,142
there is some reason to suppose that the way in which they are delineated may turn out
to have a greater signiﬁcance.143
137 TEU Art.42.
138 The Constitutional Treaty would have executed a full merger of the First and Third Pillars for all
Member States.
139 The recent run of cases under the Third Pillar that concern the ne bis in idem principle that is written
into Art.54 CISA is relevant here. In the majority of its rulings the Court has “giv[en] priority to free
movement of persons objectives over those relating to the repression of crime and the protection of public
safety”: Criminal Proceedings against Gasparini (C-467/04) [2006] E.C.R. I-9199; [2007] 1 C.M.L.R. 12,
Opinion of A.G. Sharpston at [61]: see G¨oz¨ut¨ok [2003] E.C.R. I-1345; Criminal Proceedings against Van
Esbroeck (C-436/04) [2006] E.C.R. I-2333; [2006] 3 C.M.L.R. 6; Van Straaten v Netherlands (C-150/05)
[2006] E.C.R. I-9327 and Gasparini itself. But compare Criminal Proceedings against Miraglia (C-469/03)
[2005] E.C.R. I-2009; [2005] 2 C.M.L.R. 6 where the Court did the opposite.
140 See the discussion of Pupino (C-105/03) [2005] E.C.R. I-5285 and Commission v Council (C-176/03)
[2005] E.C.R. I-7879 above.
141 European Commission, Towards an Area of Freedom, Security and Justice, MEMO/98/55, Brussels,
July 15, 1998. See also, successively, Presidency Conclusions, Tampere European Council, October 15 and
16, 1999; Council of the European Union, Note from the General Secretariat to Delegations on the Hague
Programme: Strengthening Freedom, Security and Justice in the European Union [2005] OJ C53/1.
142 See, for example, European Commission, Towards an Area of Freedom, Security and Justice,
MEMO/98/55, p.9, where it is stated that, “in the framework of the consolidation of an area of freedom,
security and justice. . . the concept of public order appears as a common denominator in a society based on
democracy and the rule of law”. It continues: “Independently of the responsibilities of Member States for
maintaining public order, we will gradually have to shape a ‘European public order’ based on an assessment
of shared fundamental interests.”
143 See Commission of the European Communities, The Hague Programme: Ten Priorities for the Next Five
Years; The Partnership for European Renewal in the Field of Freedom, Security and Justice COM(2005) 184
ﬁnal, p.4, where fn.3 reads that, “the notion of freedom covers all parts of this Action Plan. For the purposes of
this document, however, freedom reﬂects the speciﬁc meaning contained in the Hague Programme” (emphasis
added).
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Estella Baker and Christopher Harding 53
Regarding visibility and scrutiny, there is very little that is fresh to be said as Treaty
reform is the real key to addressing the shortcomings of the Third Pillar.144 In the
meantime, however, should small groups of Member States seek to launch any further
initiatives that are similar in kind to the Pr¨um Convention, it would be preferable for
pressure to be exerted upon them to gather sufﬁcient support to make use of the “enhanced
cooperation” provisions in the TEU. While the environment of the Third Pillar may not
be perfect, it provides greater legitimacy than does action outside the Treaty framework
and the mechanism is explicitly designed to promote the Union’s development into an
AFSJ without encroachment upon the powers of the Community.145
Conclusion
The view that “police and judicial cooperation in criminal matters” is a “new” ﬁeld of
integration has a surprisingly tenacious hold in many discussions of the Third Pillar.
In and of itself, its continuing prevalence may well be symptomatic of the Pillar’s
characteristic obscurity referred to at the start of the discussion. Nevertheless, it is an
impression that ought to be corrected because, as shown here, the history of such cooperation
between the Member States in fact spans several decades. In so far as there
have been changes of late, they are to do with the characteristics of this collaborative
activity: co-operation has become more strongly rooted in the rule of law, increasingly
formalised within the legal and institutional framework of the Union and, consequently,
more visible and transparent. It has also become noticeably more intense during the most
recent period of development, as crime control matters have moved from the periphery
to the mainstream of Union activity.
At the same time as this progress has been made, however, it is clear that the Member
States are not yet satisﬁed with the infrastructure that has been created to support their
efforts. Therefore, even if the Treaty of Lisbon meets the same fate as the Treaty
establishing a Constitution for Europe, it seems wise to anticipate that there will a
further attempt at fundamental reform to the legal basis and content of the Third Pillar
in the relatively near future. What can be predicted with less conﬁdence is quite how far
that reform will go, particularly with regard to the question of unity among the Member
States.
In the interval between negotiation of the Treaty establishing a Constitution for Europe
and that of the Treaty of Lisbon, it is evident that there was some “backtracking” by
certain states. When the Constitutional Treaty was signed, the Third Pillar seemed about
to complete its long-term trajectory towards the supranational governance of criminal
law matters. But by Lisbon the intention of bringing the whole of the AFSJ fully
within Community competence had become thwarted by the insistence of three States
on securing arrangements for their ﬂexible participation. Bearing in mind as well the
institution of the G6 group, one possible interpretation of this development is that
the Treaty establishing a Constitution for Europe represented a “high water mark” of
enthusiasm for the adoption of the supranational method, and that we are now witnessing
144 Barring any potential to identify applicable “new governance” solutions: see Commission of the
European Communities, European Governance: A White Paper COM(2001) 428 ﬁnal.
145 See TEU Art.40–40b.
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54 A longitudinal study of the Third Pillar
a returning preference for intergovernmentalism. Whether or not that is right, a competing
conclusion, that it is the enthusiasm for collaboration itself that is waning, must surely
be untenable. Even if the legal framework that currently supports it is not as entrenched,
the habit of co-operation has become progressively well embedded over the half century
with which this article has been concerned. Furthermore, such information as is available
regarding the potential content of the new AFSJ programme suggests that uncertainty
over the prospects for Treaty reform is no barrier to future ambition.146
146 High-Level Advisory Group on the Future of European Justice Policy, Freedom, Security, Privacy—European
Home Affairs in an Open World (June 2008); High-Level Advisory Group on the Future of European
Justice Policy, Proposed Solutions for the Future EU Justice Programme (June 2008).
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