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The area of freedom, security and justice (AFSJ) is a collection of European Union (EU) policies designed to ensure security, rights and free movement within the EU. As internal borders have been removed within the EU, cross border police cooperation had to increase to counter cross border crime, and thus also minimum judicial standards. Some notable projects related to the area are the European Arrest Warrant, the Schengen Area and Frontex patrols.
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The area comes under the purview of the European Commissioner for Justice, Fundamental Rights and Citizenship and the European Commissioner for Home Affairs. They deal with the following matters: EU citizenship; combating discrimination, drugs, organised crime, terrorism, human trafficking; free movement of people, asylum and immigration; judicial cooperation in civil and criminal matters; police and customs cooperation; and these matters in the acceding countries.[1]
The relevant European Commission departments are the DG for Justice and DG Home Affairs. However there is also Eurojust and Europol, which develop judicial and police cooperation respectively. Related to the latter there is also the European Police College, the European Police Chiefs Task Force and Frontex.
Over the years, the EU has developed a wide competence in the area of justice and home affairs. To this end, agencies have been established that co-ordinate associated actions: Europol for co-operation of police forces,[2] Eurojust for co-operation between prosecutors,[3] and Frontex for co-operation between border control authorities.[4] The EU also operates the Schengen Information System[5] which provides a common database for police and immigration authorities throughout the borderless Schengen Area.
Furthermore, the Union has legislated in areas such as extradition (such as the European Arrest Warrant),[6] family law,[7] asylum law,[8] and criminal justice.[9] Prohibitions against sexual and nationality discrimination have a long standing in the treaties.[10] In more recent years, these have been supplemented by powers to legislate against discrimination based on race, religion, disability, age, and sexual orientation.[11] By virtue of these powers, the EU has enacted legislation on sexual discrimination in the work-place, age discrimination, and racial discrimination.[12]
In 2006, a toxic waste spill off the coast of Côte d'Ivoire, from a European ship, prompted the Commission to look into legislation against toxic waste. Environment Commissioner Stavros Dimas stated that "Such highly toxic waste should never have left the European Union". With countries such as Spain not even having a crime against shipping toxic waste Franco Frattini, the Justice, Freedom and Security Commissioner, proposed with Dimas to create criminal sentences for "ecological crimes". His right to do this was contested in 2005 at the Court of Justice resulting in a victory for the Commission. That ruling set a precedent that the Commission, on a supranational basis, may legislate in criminal law – something never done before to outlined in treaties. So far though, the only other use has been the intellectual property rights directive.[13] Motions were tabled in the European Parliament against that legislation on the basis that criminal law should not be an EU competence, but was rejected at vote.[14] However in October 2007 the Court of Justice ruled the Commission could not propose what the criminal sanctions could be, only that there must be some.[15]
The European Commission has listed seven offences that become European crimes. The seven crimes announced by the Commission are counterfeiting euro notes and coins; credit card and cheque fraud; money laundering; people-trafficking; computer hacking and virus attacks; corruption in the private sector; and marine pollution. The possible future EU crimes are racial discrimination and incitement to racial hatred; trafficking in human organs and tissue; and corruption in awarding public contracts. It will also set out the level of penalty, such as length of prison sentence, that would apply to each crime.[16]
The first steps in security and justice cooperation began in 1975 when the TREVI group was created, composed of member states' justice and home affairs ministers. The first real cooperation was the signing of the Schengen Implementing Convention in 1990 which opened up the EU's internal borders. The parallel the Dublin Regulation furthered police cooperation.[17]
Cooperation on interior policies such as immigration and police cooperation was formally introduced in the Maastricht Treaty which established Justice and Home Affairs (JHA) as one of the EU's 'three pillars'. Justice and Home Affairs was far more intergovernmental than the larger European Community pillar, so its decisions were taken by unanimity, slowing progress. Yet under this, the EU created the European Monitoring Centre for Drugs and Drug Addiction. (EMCDDA) in 1993 and Europol in 1995. 1995 also saw the first European directive on the protection of personal data. In 1997 the EU adopted an action plan against organised crime and established the European Monitoring Centre on Racism and Xenophobia (EUMC). In 1998 the European Judicial Network in criminal matters (EJN) was established.[17]
The idea of an area of freedom, security and justice was introduced in May 1999 Treaty of Amsterdam which stated that the EU must "maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime" (Amsterdam 1:5). The first work programme putting this into effect was agreed at Tampere, Finland in October 1999 and it was achieved in 2004. Subsequently the Hague programme, agreed in November 2004 set further objectives to be achieved between 2005 and 2010.[18]
The Treaty of Amsterdam also transferred the areas of asylum, immigration and judicial cooperation in civil matters from JHA to the European Community pillar. The remainder of the JHA pillar was renamed Police and Judicial Co-operation in Criminal Matters (PJCC).[19] Since then good progress has been recorded in the European Community areas of integration, with slower progress in the PJCC pillar.[18]
During this time further advancements were made. The European Anti-fraud Office was established in 1999 and in 2000 the European Police College was created along with numerous conventions and agreements. The Treaty of Nice enshrined Eurojust in the EU treaties and in 2001-2 Eurojust, Eurodac, the European Judicial Network in Civil and Commercial Matters (EJNCC) and European Crime Prevention Network (EUCPN) were established. In 2004 the EU appointed an anti-terrorism coordinator in response to the 2004 Madrid train bombings and the European Arrest Warrant (agreed in 2002) entered into force.[17]
The 2009 Treaty of Lisbon abolished the pillar structure, merging the two areas and regrouping all JHA matters together once more under the area of freedom, security and justice. The European Parliament and Court of Justice gained a say over the whole area while the Council changed to majority voting for the remaining PJCC matters, speeding up decision making. The Charter of Fundamental Rights also gained legal force and Europol was brought within the EU's legal framework.[20] As the Treaty of Lisbon came into force, the European Council adopted the Stockholm Programme to provide EU action on developing the area over the following five years.[18]
There has been criticism that the EU's activities have been too focused on security and not on justice.[21][22] For example, the EU created the European Arrest Warrant but no common rights for defendants arrested under it. With the strengthened powers under Lisbon, the second Barroso Commission created a dedicated commissioner for justice (previously combined with security under one portfolio) who is obliging member states to provide reports on their implementation of the Charter of Fundamental Rights. Furthermore the Commission is putting forward proposals for common rights for defendants (such as interpretation), minimum standards for prison conditions and ensure that victims of crime are taken care of properly wherever they are in the EU. This is intended to create a common judicial area where each system can be sure of trusting each other.[23]
Denmark, Ireland and the United Kingdom all have various opt-out from some articles of police and judicial cooperation that were implemented into the Law of the European Union by the Amsterdam Treaty. This initially restricted their involvement in these areas, however all three are considered as police and judicial cooperation member states within the parameters of the Schengen Area on police and judicial cooperation. The latter being fully implemented by Denmark on 25 March 2001. The United Kingdom too, later opted to partake in the provisions related to police and judicial cooperation the same year, 2001. Their request to partake being later fully implemented and ratified by Decision of the Council of sovereign states with effect from 1 January 2005.[24]
The Republic of Ireland, however, while having given state undertakings in international agreements with the other EU member-states, signed on 28 February 2002,[25] has never implemented any of those articles making that sovereign member-state of the EU the only state of the pre-2004 accession-states to not have implemented in law any of the articles on Police and Judicial Co-operation in the European Union,[26] making any actions thereunder since 2002 potentially invalid upon appeal at the European Court of Justice.