Police and Judicial Co-operation in Criminal Matters: Will the EU Constitutional Treaty Keep it Toge

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This analysis states that while enhanced cooperation on police and security might risk institutional rupture and legal fragmentation, it could also facilitate a “bottom-up” process of successful cooperation in criminal justice.

Police and Judicial Co-operation in Criminal Matters: Will the EU Constitutional Treaty Keep it Together?

Ten to fifteen years ago it was hardly imaginable that the European Union would have its own institutions for police and judicial cooperation. Critics who blame Europol and Eurojust for their lack of efficiency and operational value tend to forget that the evolutionary curve in the field of Justice and Home Affairs has been rather steep. Most shortcomings are related to a variety of factors.

Criminal Justice Cooperation in Europe: An Arena of Diversity

First of all, the intergovernmental character of criminal justice governance in the EU is the reason behind the reluctance of the Member States to grant the European Commission more coordination capacity. Throughout the Convention debates, the Member States remained deeply divided, not so much about whether or not the intergovernmental Third Pillar would have to be abolished, but about whether the European Commission should enjoy a single right of initiative in this field.

Second, voting by unanimity, which so unequivocally characterises intergovernmental governance, has lead to downward pressure on the decision-making in the JHA-Council hierarchy. In the recent past, the adoption of ‘soft’ legal instruments – often done to circumvent the timely and tedious unanimity procedure in the JHA Council – has resulted in a fragmented or even suspended implementation of EU law in the Member States.

Third, the sheer size of the EU, in combination with national sovereignty concerns, has culminated in a heterogeneous approach to the creation of an internal security area in the European Union. The Schengen Agreement, which was integrated in the EU by virtue of a protocol attached to the Amsterdam Treaty, is a perfect demonstration of how the variable geometry model can be applied to criminal justice governance. Schengen itself has grown from the original 5 to 13 Member States plus the associated states Norway and Iceland. But the UK and Ireland are making use of an opt-in protocol which allows them to preserve internal border controls whilst simultaneously participating in other parts of the Schengen ‘menu.’ Several other examples illustrate the creativity of the Council to create more leeway in the integration process, such as the opt-in protocol for the jurisdiction of the European Court of Justice, the ‘rolling ratification’ principle (which makes it possible for a Convention to be implemented when ratified by more than half of the Member States), and the national security clauses which rule out EU intervention in crises of a purely national character.

Fourthly, the consolidation of police and judicial cooperation in criminal matters within the EU is not a process which takes place in splendid isolation. Significant in this regard are the national and multi-lateral forces which add pressure on the decision-making process. At the national level, we find several national law enforcement facilities which themselves are competing for supra-regional or supra-national coordination competencies. Several facilities are meant to improve the national coordination of cross-border information exchange, international mutual (legal) assistance, and cross-border operational activities. Important in this regard are the Europol National Units (ENUs), the Interpol National Central Bureaux (NCBs) and the national SIRENE offices, which function as 24-hour facilities for the verification of SIS -alerts.

On the sub-central and trans-regional level we find several cooperative ventures between police forces and/or judicial organisations across national borders. These forms of cooperation often have a semi-formal character, to the extent that they can be based on a memorandum of understanding or function on the basis of a semi-permanent secr etariat. Examples are the Cross-Channel Intelligence Conference (Kent County Constabulary, France, Belgium and regional police forces in The Netherlands); NEBEDEACPOL, which is a longstanding cooperative venture between chiefs of police in the Netherlands, Belgium and Germany, particularly in the Aachen-Liège-Maastricht area; and the cooperation which encapsulates all Scandinavian states that are members of the Nordic Union. On the other side of the spectrum, we should not forget the impact of multilateral organisations, such as the United Nations and Interpol, on how the EU seeks to carve itself a niche within the internal security arena. Chances, successes, professional and political opinions all have their bearing on the room that is created for negotiation on EU-level.

Fifth, and this has also been highlighted by Richard Lewis, the impact of internal security crises (the Dutroux-case in Belgium, the 11th of September attacks, and lately the bombings of the trains in Madrid) on the EU is very strong. Indeed, the terrorist attacks in the EU culminated in an unprecedented wave of measures and an acceleration in the adoption of legal instruments, such as the Framework Decision on the European Arrest Warrant. This means that the long-term agenda for the accomplishment of the Area of Freedom, Security and Justice is susceptible to sudden changes of manoeuvre.

When all these factors are pulled together, the image that arises is one full of actors who are involved in serious competition to acquire influence in the European security domain. The transatlantic dimension should not be neglected here: for decades the US in particular, has enormously expanded its web of intelligence liaison officers within Europe, and links with law enforcement milieux in Central and East Europe have been infused with human and financial capital. This is certainly bad news for those who want clear leadership and comprehensible coordination by a central agent. All these practices pulled together show a multi-layered model of law enforcement cooperation with and within Europe, each of them with its own focus, legal arrangements and formal integration. Hence, the question should no longer be whether we should embrace enhanced cooperation in the law enforcement field, but how a balance can be struck between a variety of formal cooperation arrangements at EU level and informal forms of criminal justice governance at other levels of governance.

Abolition of the Third Pillar – A Cosmetic Exercise

The situation that has been sketched above poses a serious challenge to the policy coordination capacities of the European Union, in particular those of the European Commission. All actors seem deeply aware of the effects that enlargement will have on police and judicial cooperation. Not only is there a lot of outstanding work still to accomplish – including the preparation of the border management infrastructure in the new Member States for full implementation of the Schengen agreements – but the accession of 10 new member states will clearly add more strain on the decision-making capacity within the JHA-Council. Perhaps the Tampere II programme will have the potential to achieve a solid action programme, which is acceptable to all 25 Member States and which imposes a realistic time frame for a common implementation.

A larger Area of Freedom, Security and Justice will also have to permit facultative arrangements in the area of law enforcement cooperation. The EU Constitutional Treaty will, if ratified, abolish the Third Pillar and introduce Qualified Majority Voting for a wide range of articles in the area of Justice and Home Affairs cooperation. Police and judicial cooperation in criminal matters will, however, largely be excluded from this innovation. Unanimity will thus remain in place, and the right of initiative will (in this field of cooperation) remain shared between the Commission and the Member States. From this, we may draw the conclusion that the abolition of the Third Pillar is primarily a cosmetic exercise, leaving the essentially intergovernmental characteristics in police and judicial cooperation in criminal matters intact. With this situation in mind, decision-making may even become more cumbersome than before.

Management and decision-making in the European internal security domain thus becomes an increasingly complex issue. As argued above, one important reason for this is that law enforcement cooperation is not restricted to one supranational venue, but to many forums and frameworks that are situated at numerous levels of governance and administration. From this point of view, enhanced cooperation in the criminal justice arena may already be a fact. The European Union will have to be alert on the over-bureaucratisation of police and judicial cooperation. If it fails to enhance the support of national practitioners for bodies like Europol, Eurojust and CEPOL, the added value of supra-national institutions threatens to be undermined. At the same time, the EU will have to focus on successful forms of transborder criminal justice cooperation and has to support these with financial and administrative means in order to weave them into the wider European internal security web.

Enhanced Cooperation: A Path for European Internal Security?

The EU is beginning to realise that the social legitimacy of the integration process cannot simply be achieved through the creation of a (wider) Area of Freedom, Security and Justice: as long as citizens primarily associate their sense of safety and security with his local neighbourhood and administration, the EU may just be one governance level too far. From this perspective, EU investment in cross-border and trans-regional practices of security cooperation remains essential, without wanting to lose sight on the more fundamental direction of the European integration process.

Enhanced cooperation in criminal justice cooperation within the terms of the Nice Treaty is almost impossible because a minimum of eight Member States needs to be involved, but it is also undesirable because it may contribute to institutional rupture and legal fragmentation. In contrast, enhanced cooperation outside the Treaty remains a possibility in order to facilitate a “bottom-up” process of successful cooperation in criminal justice, and can build on the Schengen precedent. Such a process could be applied to police and judicial cooperation in criminal matters (e.g. the European Prosecution Office, a European Criminal Law), under the condition that the legal instruments are coherent with EU-law and satisfy all criteria of democratic and judicial legitimacy.

Enhanced cooperation – even when pursued outside the Treaty – should thus be regarded as a last resort, namely if and when the EU-partners conclude that their inability to achieve compromise leads to stagnation in this field. Given the prominence of the internal security agenda in Europe, the furthering of police and judicial cooperation in criminal matters ought to be seen as a political priority.

Monica den Boer is Director of Research and Knowledge Development, Police Education and Knowledge Centre (LSOP), Apeldoorn, The Netherlands; Holder of the LSOP Chair on the internationalisation of the police function, Free University, Amsterdam, The Netherlands.

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