European area of freedom, security and justice

The EU plays an increasingly important role in issues such as the fight against organised crime and the management of migration flows, transforming the Area of Freedom, Security and Justice (AFSJ) into a priority of the EU’s political and legislative agenda.
This book investigates whether institutional change - the gradual communitarisation of the AFSJ - has triggered policy change, and in doing so, explores the nature and direction of this policy change. By analysing the role of the EU’s institutions in a systematic, theory-informed and comparative way, it provides rich insights into the dynamics of EU decision-making in areas involving high stakes for human rights and civil liberties. Each chapter contains three sections examining:
 the degree of policy change in the different AFSJ fields, ranging from immigration and counter-terrorism to data protection
 the role of EU institutions in this process of change
 a case study determining the mechanisms of change.
The book will be of interest to practitioners, students and scholars of European politics and law, EU policy-making, security and migration studies, as well as institutional change.

Ostatniego ćwierćwiecza polskich przemian politycznych dotyka i niniejsza publikacja, która jest zbiorem artykułów przygotowanych przez pracowników naukowych i doktorantów z różnych ośrodków w kraju. Prace dotykają zarówno polityki wewnętrznej, jak i zagranicznej państwa, co oznacza, że odnoszą się do stosunkowo dużego obszaru poznawczego. Zdecydowaną przewagę uzyskały w tej tematyce problemy zewnątrzpaństwowe odnoszące się do Unii Europejskiej, polityki zagranicznej, kilku aspektów bezpieczeństwa europejskiego i międzynarodowego, migracji wewnątrzeuropejskich czy Kościoła katolickiego. Wszystkie te kwestie mieszczą się w ogólnych zarysach „wybranych problemów politycznych” państwa polskiego w latach 1989-2014. Zadaniem niniejszej publikacji stało się przybliżenie Czytelnikom takich problemów politycznych Polski z ostatniego ćwierćwiecza, które wymagają dodatkowego komentarza, pogłębionych analiz podmiotowych i przedmiotowych oraz ciągle aktualnego spojrzenia metodologicznego i merytorycznego.

Il contributo mette in luce le criticità dell’approccio adottato nel provvedimento annotato rispetto alla compatibilità con l’ordine pubblico internazionale di una norma straniera che preveda l’imprescrittibilità del diritto di portare ad esecuzione una decisione giurisdizionale. In particolare, si evidenzia come la riconosciuta natura privatistica degli interessi tutelati dall’istituto della prescrizione non sia idonea a sottrarre l’istituto stesso all’applicazione della clausola di ordine pubblico. Infatti, l’imprescrittibilità del diritto di portare ad esecuzione una decisione può comunque ledere taluni principi sovranazionali posti a tutela dei diritti fondamentali dell’uomo e che trovano appunto espressione proprio nell’ordine pubblico internazionale.

The judgment of November 11, 2020 interprets both the exclusive ground of jurisdiction in proceedings which have as their object rights in rem in immovable property and the ground of jurisdiction in matter relating to a contract of art. 7.1 of Regulation 1215/2012. Regarding the first of these forums, the Court considers that an action must be regarded as constituting an action “which has as its object rights in rem in immovable property, provided that the action may be relied erga omnes. With regard to the contractual forum, it is especially significant that the Court determines directly the place of fulfilment of the obligation; without considering the governing law of the obligation according with the conflict rules of the court seised.

With emphasis on the ECJ's first Refugee Law case Salahadin Abdulla and Others (C-175/08), this article brings to light the failure to correctly interpret the Geneva Refugee Convention by different actors (UNHCR, the European Commission and the Court of Justice) responsible for its supervision and interpretation. The analysis focuses on: the relevance of the Refugee Convention for the EU's common policy on asylum; the role of the European Court of Justice in the interpretation of the Refugee Convention; the rules of interpretation to be used when interpreting the Convention; and the specific results to which the application of those rules would lead with respect to the so-called secession clause.

In recent months, the migration crisis and the terrorist threat have caused a number of countries of the Schengen area to reintroduce internal border controls. The Union reacted by reforming key aspects of the border regime. On the one hand, the adoption of the «hotspot approach» and the creation of the European Border and Coast Guard rules out the principle of exclusive State responsibility as far as the management of external borders is conncerned. On the other hand, a parallel process takes place with regard to internal borders, where a supranational process of decision-sharing is established when a systemic threat requires the temporary reintroduction of controls. However, the future of Schengen also depends on other variables: the reform of the asylum and Dublin system, a more effective policy of return of irregular migrants and a closer cooperation between states in the fight against terrorism.

Negli ultimi mesi, la crisi dei migranti e la minaccia terroristica hanno indotto numerosi paesi dell’area Schengen a reintrodurre i controlli alle frontiere interne. L’Unione ha reagito riformando aspetti chiave del regime dei confini. Sul versante esterno, per effetto del c.d. metodo hotspot e della disciplina della Guardia costiera e di frontiera, si supera il principio della responsabilità esclusiva degli Stati-frontiera nella gestione del perimetro di Schengen. Sul versante interno, si delinea un parallelo processo di condivisione delle decisioni sul ripristino temporaneo dei controlli quando la minaccia sia sistemica. L’area di libera circolazione ne esce rafforzata, ma il futuro di Schengen dipende anche da altre variabili, quali la riforma del sistema di asilo e di Dublino, una più efficace politica dei rimpatri dei migranti irregolari e una più stretta cooperazione tra apparati statali nella lotta al terrorismo.

EU-US relations in internal security demonstrated a tendency to be turbulent. As a result, EU-US cooperation has not evolved into a partnership but into an asymmetrical relationship within which the EU has become a 'norm taker' - a recipient of US security norms. With this perspective in mind, it is time to take stock of the changes in the institutional configuration of the EU brought about by the Lisbon Treaty. In particular, the European Parliament (EP), often a vocal critic of the transfer of US security norms to the EU in the past, has been empowered to consent to international agreements. We therefore examine whether the EU remains a recipient of US security norms after Lisbon through the first case of its kind: the EU-US Society for Worldwide Interbank Financial Telecommunication (SWIFT) Agreement. By rejecting the first of the two agreements, the EP generally acted contrary to the preferences of the Council and United States, who were mostly in favour of the agreement. Despite this opposition, the EP gained few concessions from the United States and Council in the second round of negotiations for a permanent SWIFT Agreement, with their emphasis on security trumping most of the EP's data protection concerns. In sum, the use of theories on norm internalization allows us to conclude that, after Lisbon, the EP has abandoned its previous critical stances and is now becoming a new 'norm taker' within the EU-US relationship.

Regulation (EC) Nr. 343/2003 (the "Dublin II Regulation") aims at distributing asylum applications - and asylum seekers - among the Member States of the EU. Even though it comprises a set of rules aiming at preserving family unity, its implementation still leads to the separation of asylum seekers from their family members in a wide range of situations. This problem, frequently discussed before national courts and constantly underscored by the UNHCR, legal doctrine and NGOs, has not been thoroughly examined to date. The present work aims at filling this gap. It first illustrates in detail the "conflict area" between the Dublin system and family unity, through in-depth legal analysis of the Dublin II Regulation and of its practice of application. It then re-examines the Regulation in the context of European and International human rights Law. As it will be seen, the maxim "Community legislation is not to be read in a legal vacuum" (John Usher) fully applies here, as human rights law complements the Regulation's 29 provisions with crucial safeguards, both substantive and procedural, for respect of family life.

Nel 2005 nasce l’agenzia europea Frontex, cui è stato affidato il difficile compito di coordinare l’attività di controllo delle frontiere comuni svolta dalle diverse forze di sicurezza nazionali. Frontex rappresenta uno straordinario laboratorio per le politiche di controllo della mobilità umana nell’Europa contemporanea. Un laboratorio attraverso il quale l’Unione sta concretamente sperimentando un inedito modello di gestione post-nazionale della frontiera. Questo libro rappresenta il primo sistematico tentativo di analizzare dal punto di vista delle scienze politiche, giuridiche e sociali, l’impatto che l’agenzia Frontex ha avuto sulle politiche di controllo delle migrazioni a livello europeo. Esso ripercorre la genesi dell’agenzia e ne descrive in dettaglio il funzionamento concreto, offrendo per la prima volta al lettore italiano un resoconto empirico completo sulla sua struttura e le sue attività. Nel fare ciò, tenta di esplorare il significato che un simile esperimento politico può avere per la geopolitica della frontiera europea, situando la discussione sulla nascita e il funzionamento di Frontex nel contesto del dibattito sul rapporto tra migrazioni, sicurezza e trasformazione dei confini nel mondo contemporaneo.

La constitution d'un espace sans frontières intérieures constitue l'un des objectifs majeurs de l'Union européenne. La présente contribution a pour objet d'analyser les moyens qui permettent de décloisonner les ordres juridiques nationaux au sein de cet espace. Elle se penche, en particulier, sur les principes de reconnaissance mutuelle en droit du marché intérieur et de confiance mutuelle en droit de l'espace de liberté, de sécurité et de justice ainsi que sur les critiques qui leur sont adressées et les limites qui leur sont reconnues.

Free movement and respect for human rights impact on EU Member States' family law and conflict of law rules, granting EU citizens the right to recognition of a status acquired in (or under the rules of) another legal order. However, status can be prevented from producing effects in the forum if their recognition would be inconsistent with public policy. Having regard to the relevance of the EU citizen's rights in the European integration process, this essay theorizes the need to resize the Member States' sovereignty through a greatly attenuated public policy clause, notably when a minor's status is at stake.

This thesis examines the integration of the external border management in the European Union (EU) through the theoretical lens of
neofunctionalism with the case study of Frontex. Although the external border management area is under shared competence, the establishment of Frontex as an Area of Freedom, Security and Justice (AFSJ) agency in 2004 and its upgrading to the European Border and Coast Guard
(EBCG) in 2016 to ameliorate the efficiency of management at the external borders of the Union represented an important step in the communitarization of the external border management of the EU member states (MS) compared to the previous intergovernmental attempts of Schengen and Common Unit (CU). In this sense, this study elaborates the institutional and empirical developments in the establishment of Frontex and EBCG, and focuses on the actors and events influential in the process of external border management integration. The neofunctionalist tool of spillover is the mechanism used to explain integration in this context. Besides classical neofunctionalism and the theoretical tool of spillover, revised neofunctionalism is also taken into consideration in explaining the integration. While providing a case study on one of the AFSJ agencies Frontex, this study also aims to contribute to the literature with the use of one of the main and most criticized integration theories applied to one
of the controversial areas of the EU integration.
Keywords: EU, Frontex, neofunctionalism, external border management, integration

"This article offers an analysis of the European Union’s (EU) efforts in the fight against terrorist finances. Following the 9=11 attacks, the EU has adopted the relevant United Nations counterterrorism resolutions as well as the special recommendations of Financial Action Task Force. In addition, the EU has developed its own measures spanning across all of its three pillars. There is, however, a cause for concern that some of these measures have not been properly implemented, while
others have been criticized on legal, transparency, legitimacy, and efficiency grounds. These shortcomings are not only due to EU’s own internal obstacles, but also result from the EU’s uncritical adoption of the prevailing smart sanctions and money-laundering regimes, which are based on a number of unwarranted assumptions that do not reflect the nature of contemporary terrorist threats in Europe."

The paper examines the impact of the principle of proportionality for the European Arrest Warrant (EAW). The only function of proportionality discussed here is the one concerning the mutual recognition context. The argument is enunciated against the backdrop of over-emphasis on speedy judicial cooperation in criminal matters. The paper is structured in two levels; the central level of the Court of Justice of the EU (CJEU) case law analysis and the decentralised level of judicial authorities using the EAW. The analysis firstly explores the recent case law of the CJEU affirming the need to secure the operation of the mutual recognition and secondly the debate on overusing the instrument. It provides an analysis of the quest for a proportionality based analysis in the context of mutual recognition where fundamental rights protection are competing with fast judicial cooperation.

"On 21 January 2011, the Grand Chamber of the European Court of Human Rights delivered its judgment in the case of MSS v. Belgium and Greece. This judgment puts into question the practices followed by many national authorities in the implementation of the Dublin system. Particularly noteworthy are the effects on the "safety presumption" that Member States accord to each other in the field of asylum.
The authors explore the implications of the MSS decision, first, in regard of the evidentiary requirements imposed on asylum seekers to rebut the safety presumption. They come to the conclusion that through the decision, a real paradigm-shift has taken place – from the theoretical to the actual supremacy of the non-refoulement principle in Dublin matters. This is also true in light of the increased requirements imposed by the Court as regards the scope and depth of judicial review on transfer decisions.
Moreover, the MSS judgment could give new impetus to the stalled reform process concerning the Dublin Regulation. Indeed, the Court's decision seems to enshrine in positive ECHR law the most progressive elements of the Commission's proposal, including procedural guarantees and, de facto, the mechanism for the temporary suspension of transfers to member states not offering adequate protection."

تتناول تلك الورقة البحثية معضلة الأمن والحرية في الواقع المصري بعد ثورة 25 يناير، انطلاقًا من طبيعة العلاقة بين الأمن والحرية والتي أعتبرها تكاملية أكثر منها متعارضة؛ كون الأمن حامي للحرية لا مُقيدًا لها، مع عرض بعض التجارب الدولية المختلفة في طبيعة التعاطي مع تلك المعضلة وأهم ما بها، وكيف سيكون مستقبل تلك العلاقة الشائكة في ظل الواقع المصري المُعاش.

The European Border Surveillance System (Eurosur) is a flagship initiative chiefly oriented towards the combating and prevention of illegal immigration into the EU through increased coordination of national border surveillance services, better information-exchange, and common surveillance. However, the regulation setting up Eurosur also contains explicit and repeated references to the fight against cross-border crime.  Here we ask what value added this could bring.

The development of the EU qua AFSJ has always been characterised by differentiation and since the Lisbon treaty the AFSJ is characterised by two main models of ‘variable geometry’. While the model chosen by the U.K. and Ireland differs from the Danish one from a formal perspective, the immediate result has the same effect: the three countries abstain from the policies composing the AFSJ (opt-out). In addition, the U.K. and Ireland have the right to adhere to single measures (opt-in) while Denmark participates in some policies by way of public international law. As a result of this, the AFSJ is developing as a fragmented policy. Parallel to its internal developments, the EU has developed an external dimension of the AFSJ in order to secure its neighbourhood and carve itself a role as “Global security actor”. However, one could wonder the extent to which the regional and global ambitions of the EU can be reconciled with the legal constraints affecting the AFSJ from institutional and substantial perspectives. This paper argues that while ‘variable geometry’ poses institutional challenges, the legal implications of ‘variable geometry’ do not create substantive obstacles for the EU to be a “Global security actor”

EU policies refer to the integration of third-country nationals as a crucial duty of
each member state’s government, and claim that both host societies and immigrants
are responsible for developing this two way process. This study aims to
explore how Portugal government handles the challenges raised by immigrant’s
integration throughout the help of the High Commission for Immigration and Intercultural
Dialogue (ACIDI) with special attention to the role of the National Immigrant
Support Centre in Lisbon (CNAI). It presents the way CNAI facilitates the
access of migrants to public services by realizing a one-stop-shop public management
approach, and provides a cooperative process of working with them with
the assistance of intercultural mediators who represent their own migrant organisations
in public service. This study examines those elements, which led to regard
the one-stop-shop model as a good practical example listed in European Modules
on Immigrant Integration. The results reveal that the cooperation among different
types of organisations and the existence of clear governmental goals and support
are essential for the realization of an effective integration policy. (Full text in Hungarian
on pages 85–106.)

The European Union Regulations 2019/817 and 2019/818 establish a framework for interoperability between information systems in the areas of borders, visas, police and judicial cooperation, asylum and migration, namely: the Entry/Exit System (EES); the Visa Information System (VIS); the European Travel Information and Authorisation System (ETIAS); Eurodac; the Schengen Information System (SIS) and the European Criminal Records Information System on third-country nationals (ECRIS-TCN). This contribution analyses the content and the objectives of these Regulations in order to show that their scope extends beyond the borders of the European Union. It will focus on Article 20 of Regulations 2019/817 and 2019/818 which, unlike the impact assessment proposed by the European Commission, does not limit its scope to a delimited territorial area.

This article investigates the emergence and transformation of a debate on " welcome culture ". This concept has developed as part of a wider effort by the German government since 2005 to improve perceptions of immigration. In autumn 2015, the term entered mainstream public discourse when it became a point of reference for political, societal and media actors. These groups sought to promote a pro-refugee policy for humanitarian or economic reasons, or simply out of pragmatism. Eventually , right-wing actors began to dominate the discourse in order to undermine the pro-refugee camp and approach. The discussion therefore reflects the struggles to define whether Germany and Austria are countries of immigration, or should even aspire to this title.

It has almost been eight years since the Lisbon Treaty entered into force on 1 De-cember 2009, reshaping the EU's competence in the field of criminal law and, among other aspects, abolishing the legal instrument of framework decisions. This contribution follows the course of framework decisions up to date and reviews significant questions that remain open regarding their current effect and their future status.

The aim of the Dublin system is to prevent positive and (most commonly) negative conflicts of competence regarding the determination of a peculiar prsonal status, by rapidly identifying a single responsible Member State (MS).
This article discusses the performance of this set of rules, drawing inspiration from other areas where a need for coordination of State powers arises and aims to ascertain whether the current Dublin III Regulation complies with the relevant guidelines and principles
spelled out in EU primary law, in the Geneva Convention, and in the international regime on Search and Rescue at Sea.
After having determined the unsatisfactory outcomes of the present rules, the essay takes a different approach, partially echoed in a report recently adopted by the European Parliament on the reform of the Dublin system and based on several indispensable and mutually reinforcing elements: an enhanced recourse to connecting criteria inspired by a genuine link approach; the introduction of a permanent system of mandatory shares of applications, according to a proper reading of art. 80 TFEU; the adoption of reasonable incentives for States and applicants to fully participate in the system (including a qualified freedom of movement for work purposes); the simplification of the procedures.
In doing so, the article takes the recent case law of the European Court of Justice into due account.

Guidelines to conduct the case studies for the Work Package on the 'Area of freedom, security, and justice, including migration policy' in the Project 'EU IDEA: Integration and Differentiation for Effectiveness and Accountability' funded by the European Union’s Horizon 2020 Research and Innovation Programme.

This chapter examines the politics of European Union (EU) internal security and its so-called ‘external dimension’ and explores what a critical take on them might look like. In the last few years, internal security has received heightened political and policy attention in Brussels. Besides the largely symbolic move that saw the European Commission establish the ‘Security Union’ and adopt the ‘European Agenda on Security’ in 2015, major accelerations and inflections have unfolded in relation to EU internal security in recent years, particularly in relation to counter- terrorism, border and migration control. Measures that had initially proven contentious due to their implications for fundamental rights and freedoms, such as the establishment of an EU Passenger Name Record (PNR) system, have been adopted, seemingly overnight. EU bodies in the field of justice and home affairs (JHA) have been granted new capacities and competen- cies, among other the establishment of a Counter-Terrorism Centre (CTC) at the EU agency for law-enforcement cooperation (Europol), or the transformation of the EU’s external borders agency Frontex into the European Border and Coast Guards agency (EBCG) with an expanded mandate to deal with internal security matters, including organised crime and counter-terrorism. These transformations have largely been justified on the grounds that the EU has of late been facing a security as well as a migration and refugee ‘crisis’. In turn, these transformations have been hailed as ‘signalling a new era for security in Europe’, in the recent words of Commissioner for Migration and Home Affairs Dimitris Avramopoulos (European Commission 2019).

Such is the background against which the present chapter interrogates the unfolding of EU internal security and its external dimension. Conventional accounts of these politics tend to work with three key assumptions. First, that EU internal security measures and policies devel- oped over time as a response to pre-existing security problems: as a response to clandestine political violence in the 1970s, to transnational organised crime and drugs trafficking in the 1980s, and from the 1990s onwards to tackle concerns with cross-border movements of persons, that is ‘illegal immigrants and bogus asylum seekers [...] and the criminal organisations involved in illegal immigration’ (Mitsilegas, Monar and Rees 2003, 26–27). Second, that the ‘external dimension’ of EU internal security measures and policies, paradoxical as this qualification may sound, grew out of the imperative that ‘the EU must protect its own space from a variety of challenges that include organised crime, illegal immigration and terrorism [that] have become de-territorialised, originating increasingly from actors that operate outside the Union’s external borders’ (Rees 2008, 97–98).Third, that the ‘external dimension’ has involved the EU encourag- ing so-called ‘third countries’‘to adopt measures based upon its own model of internal security’ (Rees 2008, 98).

The chapter looks to turn these three assumptions – that security is a functional response to threat, that the ‘external dimension’ involves the protection of an internal security (and secure) space, and that it consists in exporting an ‘EU model’ – into questions. Can we take for granted the functionalist account of security politics, whereby security measures unfold as a response to prior, objectively defined and definable threats? Can we analyse these politics as a sequence of centripetal processes – whereby a domain, space and ‘model’ that can be confidently identified as ‘EU internal security’ is established and delineated – and centrifugal dynamics – whereby the prescriptions and practices of EU internal security are then disseminated or dif- fused ‘outside’? The chapter essentially argues that the development of an EU internal security domain is inseparable from the production of claims and knowledge defining the ‘challenges’ or ‘threats’ that this domain should be concerned with, and that as such EU internal security is better understood as EU internal (in)security. A second line of argument is that while the development of this domain has been framed by some practitioners and scholars alike as an EU-centric and centripetal process, it is more fruitful and certainly more reflexive to consider the unfolding of EU internal (in)security in terms of the constitution of and relations between multiple, overlapping spaces and distinct and at times competing ‘centres’.

This article aims to provide an assessment of the evolution and contribution since 2001 of the European Union infrastructure and transport protection policies to the European fight against terrorism. Using the avowed goals of the Protect strand of the 2005 EU Counter-terrorism Strategy as a yardstick, the intention here is to evaluate the extent to which reality matches the aspirations present in the European political discourse and in particular the overall aim of ‘strengthen[ing] the defences of key targets, by reducing their vulnerability to attacks, and also by reducing the resulting impact of an attack’. In this way, special attention is paid to the outcomes from a number of initiatives in the field such as the European Programme for Critical Infrastructure Protection (EPCIP), the Critical Infrastructure Warning Information Network (CIWIN), the Action Plan for the Enhancement of the Security of Explosives, the directives and regulations on aviation and maritime security and others. Continuing the pattern set out by the other contributions in this issue, the objective is to assess the degree to which initiatives have led to practical results, the political and institutional factors that have facilitated the process of policy development and implementation, the obstacles that have stood in the way of the practical realization of the initial objectives and, finally, lessons learnt.

The study assesses firstly the evaluation process of the first generation of asylum instruments while underlining the possibilities to improve it. It analyses secondly the asylum "acquis" regarding distribution of refugees between Member States, the eligibility for protection, the status of protected persons regarding detention and vulnerability, asylum procedures and the external dimension by formulating short-term recommendations of each area. Its last part is devoted to the long term evolution of the Common European Asylum System regarding the legal context including the accession of the EU to the Geneva Convention, the institutional perspectives including the new European Support Office, the jurisdictional perspective, the substantive perspective, the distributive
perspective and the external perspective.

El reconocimiento mutuo no puede avanzar si no se construye suficientemente la confianza mutua entre organizaciones jurisdiccionales de países diferentes.
En este trabajo se examina el progreso tanto del reconocimiento como de la confianza mutua en un sector específico: la cooperación en la restitutición de menores en caso de sustracción internacional. Se examina el mecanismo del Convenio de La Haya de 1980, la forma en que aborda la desconfianza entre autoridades de diferentes estados y cómo se profundiza en la cooperación, a partir de esa base, en un espacio de integración más intensa como es la Unión Europea