Justice and Home Affairs in an Enlarged European Union

Context

The candidate states are adopting or are
preparing to adopt EU systems such as Europol, Schengen (the
totality of the
acquis have to be accepted according to art. 8 of the
Schengen Protocol to the TEU), the European Police College,
measures to combat organised and financial crime, Eurojust, mutual
recognition of judgements, uniform sentences for fraud against the
EU budget and so on. In this process the candidate members can be
represented as passive recipients of EU arrangements – no
modification of matters such as the Schengen acquis is available to
them. But the arrival of the new members in the EU will modify the
character of JHA cooperation by increasing the numbers of actors
involved in the framing and the implementation of policies,
changing the pattern of the problems confronted and shifting the
location of the external frontier.

The new members may be expected to have
different perspectives to those of existing members on,
inter alia, asylum and immigration policy, the
significance of the external frontier, and the methods of
transborder crime control. These different perspectives could have
the positive effect of promoting a more flexible and open Union.
This openness will (or should) go with the grain of a developing
common foreign and security policy which aims to promote good
neighbourliness with states across the eastern external frontier.
Alternatively, there may be negative effects such as promoting
strains between member states, particularly since new member states
have had no part in framing policies which they have to implement,
and creating a new exclusive border to the east.

Three scenarios can be envisaged –

• a minimalist approach to the Amsterdam Treaty, the 1998 Vienna
  Action Plan, and the 1999 Conclusions of the Tampere European
  Council, with partial implementation of the measures envisaged and
  a
  de facto retention of the unanimity rule over most of
  JHA
• the completion of most elements of the programme but retaining
  the ‘area of justice, freedom and security’ as a series of closely
  co-operating security zones (states, and bilateral and restricted
  multilateral regimes)
• a decisive move towards federalisation of aspects of JHA with a
  European public prosecutor and executive police powers for Europol,
  with all the legal implications both would involve

The Amsterdam Treaty and the follow-up documents
mark an important stage in Justice and Home Affairs but many
systems for cooperation in law enforcement cooperation and mutual
legal assistance were already in place before 1998. The complex and
dense network of cooperative arrangements and legislation – global,
European Community and European Intergovernmental, multilateral and
bilateral – with built in dynamics of their own, are little
understood outside specialist circles. Up to two hundred
legislative measures in the field of JHA could be enacted within
the next decade. New EU structures risk further complicating an
already complex picture.

The aim of the CEPS programme is to propose policy
directions adapted to an enlarged Union which would avoid –

• conflict with other objectives of policy
• the inevitable public disillusionment if few practical results
  flow from general declarations of policy
• erroneous policies based on some widely believed but grossly
  exaggerated external threat (e.g. ‘floods’ of immigrants
  ‘international’ terrorism) to the internal security of the EU
• a rigid distinction between a ‘safe’ region inside the EU
  (freedom through effective law enforcement) and an ‘unsafe’ outside
  (the source of criminal threats, corrupt law enforcement and
  political disorder)

Conflict of policy objectives is the consequence
of several factors which will be identified – inadvertence on the
part of political decision makers, unintended conseque nces of
policy (introducing or strengthening one instrument of policy may
create difficulties for either the policy concerned or for other
policies). The Tampere “scoreboard” is intended to avoid the second
pitfall but much remains to be fleshed out, a process which will
not be complete before the arrival of new EU members. In addition,
the pressures to engage in “symbolic” politics are strong and are
justified by the requirement to show moral resolve when faced with
intractable problems of public order, crime control and migratory
movements.

The values underlying the Amsterdam Treaty and the Tampere
Conclusions are encapsulated in the phrase area of ‘justice,
freedom and security’ which implies much greater emphasis on legal
and political rights and on positive benefits to the citizens of
Europe than was the case in previous JHA cooperation which
emphasised security. These values are further elaborated in the
draft Charter of Fundamental Rights. There is also a clear value
shift in terms of the agenda and workload of the Council of
Ministers in which JHA, directly or indirectly, takes a greater
proportion than any other policy area.

Policy proposals will be evaluated in the light
of these values. The impact on the treatment of third country
nationals, in which practices of member states have been less than
exemplary, is of particular interest in this context (an EU
recommendation on the treatment of asylum seekers and conditions of
detention is forthcoming). Also these values accord with the
general support of human rights across frontiers and the refusal
systematically to consider third countries as a source of threats
and as potential enemies.

The method is to select certain key policy areas and a
restricted group of candidate countries for analysis. General
questions (some of which have already been posed in the scholarly
literature and in parliamentary enquiries) are asked about the
policy areas before engaging the detail of policies and policy
proposals. Examples, with illustrative questions, are –

• Border controls Is the existing border control regime
  effective for an enlarged European Union in achieving the stated
  aims of policy? Is the Schengen
  acquis sufficiently flexible for the new borders? Is a
  European border police or border control authority practical and
  desirable? What other measures may be available to promote burden
  sharing? Are the 1992 London resolutions and the Dublin Convention
  on asylum policy adequate to the circumstances of an enlarged
  EU?
• Immigration policy Does the size of the EU and the location
  of its frontiers affect the possible content of a common
  immigration policy? Does a common immigration policy, other than a
  declaratory policy, imply a further communitarisation in this area?
  Are visas for nationals of states bordering the enlarged EU a
  sufficiently important instrument in the control of illegal
  immigration to counter balance their negative effects?
• Crime control Will the present or projected arrangements
  (e.g. Europol, Corpus Juris, Action Plan against Organised Crime,
  the 1995 and 1996 EU Extradition Conventions, etc.) be subject to
  new strains and pressures as a result of enlargement? Has the
  pre-accession Pact on Organised Crime (10 CEEC states and Cyprus –
  OJC No C220/1 15 July 1998) been of practical value? Are the
  routinized forms of cooperation subject to strain because of the
  different technical and management capacities of the present
  candidate states? Does the cost, in terms or additional
  co-ordination, of complex new EU arrangements outweigh the tangible
  benefits? What are the problems of crime control cooperation across
  the new eastern frontier?
• New frameworks for closer cooperation In an enlarged EU,
  what role in criminal law enforcement has bilateral co-operation
  and re-inforced co-operation between a limited number of member
  states ? Are there new areas in which the candidate states would
  seek and profit from closer co-operation with member states? Is
  there a Gibraltar precedent – i.e. despite Article 32 (1) (g) of
  the TEU, a state has blocked the participation of another member
  state in Schengen.
• Freedom of Movement has two aspects – the freedom to cross
  borders and the freedom to reside and work? Is there basis in the
  fears that excessive numbers of people will move from the candidate
  states westwards after the date(s) of entry to the EU has been
  decided? What is the potential impact of free movement rights on
  both the old and the new Member States? What are the implications
  in specialised areas such as social security rights for family
  members of EU migrant workers. Do temporary movers pose problems
  e.g. evasion of tax, social security regulations, and wilfully
  ignoring health and safety regulations? What are the implications
  of enlargement for freedom of movement of resident third country
  nationals? Can population flows be controlled if there is demand
  for labour in the EU as a result of an ageing population?
• The incorporation of the acquis communautaire Will the
  adoption of the legal order and practice of the Community as well
  as the entire secondary EC legislation by the candidate states
  promote strains in JHA after accession? Will the new members wish
  to call a halt or to slow down the pace of integration because the
  costs of further change have become too high? Is a two or three
  tier Europe likely to develop in the medium term in JHA? Will
  anti-corruption measures, bearing in mind the corruption endemic in
  member states of the EU, represent an area of particular
  difficulty?
• The exclusion/marginalisation of non-member states Has the
  EU security regime an expansionary dynamic? Is the consequence of
  enlargement to draw eastern neighbours into a close cooperative
  relationship with aspects of the arrangements of JHA along the
  lines of Norway, Iceland and Switzerland for Schengen? What are the
  perspectives of the candidate members on neighbouring states on the
  issues posed? Can these perspectives have any influence on EU
  policy?

The posing of these and other questions is a
preliminary to making specific policy proposals

The vast compass of JHA requires that a broad
inter-disciplinary network is established to draw on the expertise
of practitioners, lawyers, political scientists, economists and
historians from candidate and member states. It is intended to
embark on this early in 2001.

Malcolm Anderson, Associate Senior Research
Fellow

, Research Fellow

For an in-depth analysis, see CEPS

Commentary.