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Justice & Home Affairs
Session 2
Legal Development of JHA
Stockholm Programme
Amsterdam Treaty
Maastricht Treaty
Assigned readings for this session:
•Peers (2011), pp. 41-52, 73-82, 90-92
•Baker & Harding (2009), pp. 28-37, 43-47
•Treaty on the Functioning of EU, Part Three, Title V: Area Of Freedom, Security And Justice (arts.
67-89)

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‘Schengen’
Brief overview JHA development
Current legal framework
Critical issues
Presentations
Overview development
•Treaty changes and
•JHA Multi-annual programmes
Current Legal Framework
•
•Ttile V TFEU (Part Three)
Debate
‘opt-in’ and ‘opt-out’ arrangements’?
Critical issues
•Reactivity
•Security bias

●The ‘Maastricht’ origins
●separate institutional framework: intergovernmental ‘Third Pillar’
●Council dominant institution
●Commission and EP had no role
●legal instruments in the form of treaties
●came into force in 1993
●the 1985 Schengen initiative was (at the time) outside the EU
●
–

●Amsterdam Treaty (1997)
●integration Schengen acquis into EU
●transfer visa, immigration & asylum to first ‘Community’ pillar
●police and judicial cooperation stayed in third pillar
●introduction of ‘AFSJ’
●increased presence of Commission, Parliament & Court of Justice in Third Pillar
●key legislative instrument in third pillar: ‘framework decision’
–

●Tampere Programme (1999–2004)
●first in the series of multi-annual programs for implementation of  JHA
●
●Nice Treaty (2001)
●establishing Eurojust coordinating between national prosecution authorities
●
●

●The Hague Programme (2005–2009)
●came about in a completely different political momentum (9/11; Spain(2004) and London (2005)
●in practice: more focus on security
●Lisbon Treaty (2009)
●whole AFSJ in one legal framework (Title V, TFEU)
●expansion of  (co-decision) 'ordinary procedure’
●Directive (hence: direct effect of secondary EU law)

●Stockholm Programme (2010)
●very specific recommendations on a very broad range of issues
●better tools for evaluation of JHA policies
●Strategic Guidelines (2014)
●more on consolidating the existing legal instruments and policy measures

●Strategic Agenda 2019-2024 (2019)
●Linking JHA to economy, resilience, sustainability and digital age
●Its aims (therefore) also include:
●increasing resilience against both natural and man-made disasters
●protection from harmful cyber activities, hybrid threats
●2020 Security Union Strategy (2020 -2025)
●Set out by Commission (not Council)
●Covering much the same as previous (addressing hybrid threats; resilience of critical
infrastructure; cybersecurity)
●
today
Security Union Strategy

‘Ordinary Legislative Procedure’ (art. 294 TFEU) extended
'emergency brake'
and
'enhanced cooperation'
Examples: arts 82(3) on adoption measures concerning procedural criminal law and 83(3) concerning
substantive criminal law.
Chapter 1. general provision on the AFSJ area
Chapter 2. rules on border check, asylum and immigration;
Chapter 3. one article to arrange judicial cooperation in civil matters
Chapter 4. five articles for arranging judicial cooperation in criminal matters;
Chapter 5. regulates police cooperation
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Lisbon Legacy: the current legal framework
Title V (under Part Three) of TFEU
Directives
 (instead of Framework Decisions)
Court of Justice now has full ‘Community’ jurisdiction over all JHA issues (i.e. issuing
preliminary rulings, annulment of legislative acts, etc.), save for exceptions related to policing
(art. 276 TFEU)
•Commission takes initiative (art 76(a) TFEU)
•or one-quarter of member states (art 76(b) TFEU)
•national parliaments scrutinize subsidiarity (art. 69 TFEU)
Legislative instruments
decision making
Unanimity in the Council & EP only consulted  in a few cases, e.g. police operations (art. 87(3)
TFEU)
Initiating legislation
Judicial review

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Creating  legitimacy for certain national policy responses and practices and mobilizing support at
EU level
(Baker & Harding 2009: 36)
Critical Issues
●  Reactivity: lack of coherence and coordination
● Security bias
Centrality of Council
Political goals of multi-annual programs did not always correspond with legislative output
(see e.g. Baker & Harding 2009: 34)
Focus on national urgencies to ensure security
•transferring national priorities and policies at EU level
•attempting to influence the EU policy agenda with own national priorities
•finding ways to legitimize contested national politics at EU level and/or instrumentalise EU
policies for justifying national policies
(Carrera 2011; Baker & Harding 2009)
Institutional indicators:
-incoherent distribution of Union’s JHA competences Treaties
-Unanimity rule in the Council
-Right for member states to initiate legislation
-No countervailing force to keep the Council in check and to force to share its deliberation with
others.

Leading statement for in-class debate of tomorrow:
The Dublin mechanism should be based on a system of quotas.
(that is: refugees should be distributed amongst member-states according to a formula
pre-established at EU level)

Leading statement for in-class debate of today:
Member states should (continue to) be able to participate in the JHA field through ‘opt-in’ and
‘opt-out’ arrangements

END
Santino Lo Bianco PhD
Email: santinolobianco@outlook.com
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