The field of Justice and Home Affairs is among those most “fundamentally changed” by the Reform Treaty, write Sergio Carrera and Florian Geyer in a 17 August 2007 paper for the Centre for European Policy Studies (CEPS).
For the common EU Area of Freedom, Security and Justice (AFSJ), the implications of these changes are “potentially serious” and involve “inherent hazards”, they add.
The CEPS paper observes that substantial institutional reform has long been considered urgent in this policy field, as it is “notorious” for its inability to respond to its specific challenges under the existing framework.
For Carrera and Geter, the most significant change introduced by the Reform Treaty is the formal scrapping of the ‘pillar structure’, extending the ‘Community method’ of decision making to include police and judicial cooperation in criminal matters (PJCC).
This provides a “necessary and positive” response to “deficiencies and vulnerabilities” emanating from the legal duality of the pillar system, they believe.
The authors claim that the treaty will create an “improved” decision-making procedure leading to increased efficiency, uniform legal acts, accountability and democratic control. Thus co-decision will become the standard procedure in the AFSJ – including an enhanced role for European and national parliaments and introducing qualified majority voting (QMV) for PJCC, legal migration and visa issues, they add.
However, they also claim that the treaty permits a considerable number of deviations from general rules, warning that an increased use of “flexibility mechanisms” such as opt-outs, enhanced cooperation and the ’emergency brake’ brings a tangible risk of “exceptionalism” and “differentiation”, affecting the EU’s ability to construct a common AFSJ.
Carrera and Geter conclude that the abolition of ‘pillar duality’ over the AFSJ will lead to increased legal certainty, more involvement of the Parliament in decision making, and a widening of the European Court of Justice’s (ECJ) jurisdiction to interpret these policies.
However, they warn that too much flexibility may lead to too much complexity and a “drifting apart” of national policies, undermining the practical cooperation of the national authorities, and moreover endanger the status and legal safeguards of EU citizens.
Thus they suggest four ways in which the “perils” of the Reform Treaty’s new structures could be lessened:
- Member states should aim to reach a common consensus, preventing abuse of enhanced cooperation mechanisms.
- Sceptical member states should refrain from systematic use of the ’emergency brake’.
- The Commission, Parliament and ECJ must protect the ‘common interest’.
- The Charter of Fundamental Rights should be used as an instrument to stabilise the position of the individual and counteract “drifting” policy areas.