European area of freedom, security and justice

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.

The European Union Counter-terrorism policies have often been viewed through the prism of the EU’s Area of Freedom, Security and Justice. Yet although macro-strategic decision making is mainly located within the Council’s Secretariat and Council of JHA Ministers, its external dimension reserves a role for the EU’s Common Security and Defence Policy (CSDP). This rhetorical ‘spill-over’ of an internal security concern onto the CSDP is an interesting yet under-researched development. This is partially due to the fact that CSDP is far from being one of the most developed aspects of the European counter-terror response. Yet this occurs in a context where the need for an active use of CSDP as a counter-terrorist tool is emphasised in high-level political proclamations. The article will therefore aim to explain this disparity between EU discourse and reality. In addition, and building on recent debates in the field of terrorism studies, it provides a critical assessment of the conceptual foundations that link CSDP and C-T in the EU’s discourse while evaluating the short and medium term potential for a more vigorous evolution of these policies.

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.

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.

Brexit is an unprecedented challenge for EU law. In relation to the European Area of Freedom, Security and Justice, and as regards cooperation in civil matters, the exit from the UK will mean that it will considered a third State for all purposes. The existence of international agreements linking the UK, the EU and its Member States will facilitate the resolution of some practical problems, but an exit agreement shoul specify the temporary application of European instruments

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.

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”

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.

"In the past number of years, the EU and its member states have experienced a number of changes, as well as challenges, in the areas of politics, economics, security and law. As these areas are interconnected, changes and challenges to or in any of them have implications for the others, as well as implications for the populations and institutions of the EU or those coming into contact with its international power and influence. This edited collection will focus primarily on security and law, and most notably the EU’s internal security strategy. The EU’s Internal Security Strategy, adopted by the Spanish presidency early in 2010, followed on from the coming into force of the Lisbon Treaty in 2009, building on previous developments within the EU in the Area of Freedom Security and Justice (AFSJ) policy. The focus of the EU Internal Security Strategy is to prevent and combat “serious and organised crime, terrorism and cybercrime, in strengthening the management of our external borders and in building resilience to national and man-made disasters”. The Internal Security strategy intersects and overlaps with the European Union’s Counter-terrorism strategy, the Strategy for the External Dimension of JHA, and the EU’s Security Strategy. The role of and interaction between these strategies, their supplementing documents, and their implications for crime, victims, the law, political relations, democracy and human rights, form the backdrop against which the chapters in this collection are written.

Building on original research by its contributors, this collection comprises work by authors from a wide variety of academic and professional areas and perspectives, as well as different countries, on a variety of areas and issues related to or raised by the EU’s Internal Security Strategy, from intelligence-led policing to human trafficking and port security. This book examines, from a wide variety of discipline perspective, to include law, geography, politics and practice, both this further refinement of existing internal provisions on cross border crime, and the increasing external relations of the EU in the AFSJ.

The collection is divided into five parts. The first part will examine the fundamental relationship between policing and security. Part two will examine the relationship between security and location. While a great deal of attention has been focused on airports and passenger air travel since 9/11, in part two we have decided to concentrate on another specific but less examined location, EU commercial maritime ports. The third and fourth parts of this collection focus on two particular types of crime as case studies, commercial/financial crime and human trafficking. The fifth and final part of the book examines the “bigger picture”, the relationship between the EU’s internal and external security policy. Within each part, the contributors examine different, but overlapping, legal, political, practical and analytical cases, themes and issues.


Dr. Maria O’Neill, Law Division, University of Abertay Dundee, UK. Maria is an EU lawyer, who specialises in the EU’s provisions on Police and Judicial Cooperation in Criminal Matters. She is the coordinator of the University Association for Contemporary European Studies collaborative research network on “Policing and European Studies”. She has a number of publications in this area, to include a recent book on The Evolving EU Counter-Terrorism Legal Framework, with Routledge.

Ken Swinton, Law Division, University of Abertay Dundee, UK. Ken is a Scottish qualified solicitor, legal academic, and editor of a number of Scottish based law publications, to include the Scottish Law Gazette. He specialises in Financial Services law.

Dr. Aaron Winter is Lecturer in Sociology at the University of Abertay. He holds a DPhil in Social and Political Thought from the University of Sussex. His research examines racism, the extreme-right, terrorism and political violence. He is co-editor of and a contributor to Discourses and Practices of Terrorism: Interrogating Terror (Routledge, 2010) and the author of White Separatism and the Politics of the American Extreme-Right: Civil Rights, 9/11 and a Black Man in the White House (Ashgate, forthcoming)."

"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."

This article applies a historical institutionalist perspective to an empirical analysis of the sources and characteristics of the institutionalisation of European Union counter-terrorism. Drawing upon the work of Stone Sweet, Sandholtz and Fligstein, this paper critically analyses the impact of external crises in the form of major terrorist attacks on the emergence of counter-terrorism as an area of European governance. It also highlights the key policy and institutional developments, studies the role of policy innovators on the institutionalisation of counter-terrorism and supports the relevance of ‘transformative’ or ‘evolutionary’ models for the understanding of institutional change in this domain.

This article examines whether the empowerment of the European Union’s (EU) supranational institutions has had an impact on the development of EU asylum. By systematically investigating EU asylum law before and after communitarisation, it argues that its ‘policy core’ has maintained a high degree of continuity. An advocacy coalition under the leadership of the interior ministers managed to co-opt pivotal actors in the newly empowered European Commission and European Parliament. By contenting themselves with changes of secondary order, these EU institutions accepted and institutionalised the restrictive and weakly integrated core of EU asylum set by the Council in the first negotiation round. Their role and decisions were driven not only by the negotiation dynamics and political expediency but also by new inter- and intra-institutional norms fostering consensual practices.

This article develops a research framework for the analysis of the politics of migration policy instruments. Policy instruments are seen as living instruments; they evolve and develop similar to moving targets. A scholar interested in this field of research may focus either on the establishment of a given instrument or on its use. The question of an instrument’s design relates to the policy transfer literature focusing on how certain policies move from one setting to another. In the context of a policy transfer, actors from the other - ‘receiving’ - institutional setting negotiate and, potentially, contest or reinterpret a policy instrument. The evolution of policy instruments once adopted in a specific institutional context is a second area of interest. The original goals can be diluted throughout the implementation process notably due to tensions between intergovernmental and supranational actors, or sticky institutionalization, which is characterized by path-dependencies. Often the choice of new instruments derives from an inefficiency or loss of credibility of past instruments. This editorial therefore seeks to make a twofold contribution: first it investigates the added-value of a policy instrument approach to the study of migration; second it furthers research on the external dimension of EU migration policy.

Ex-post investigations of major terrorist attacks in Europe have highlighted the contradiction between the seemingly free movement of terrorists across Europe and the lack of Eu-wide intelligence sharing. in response, Eu policymakers have repeatedly promised to improve intelligence sharing across Europe, and some have even floated the idea that Europol should be turned into a centralised Eu criminal intelligence hub, akin to the uS Federal Bureau of investigation. in this article, i argue that despite the clear need for borderless intelligence sharing as a response to borderless terrorism, Europol is highly unlikely to become a genuine intelligence agency in the foreseeable future. Experience to date with Europol suggests that it is one thing for Europe's policymakers to make public promises to improve the fight against terrorism via better intelligence sharing across Europe, and quite another thing for them to persuade the relevant national agencies to comply.

The comparative chapter takes a closer look at what has changed in the AFSJ and how these changes can be explained. Institutional change – in particular the communitarisation of the AFSJ – has not automatically triggered policy change. The core and rationale of most (but not all) Area of Freedom, Security and Justice sub-policies has remained stable regardless of institutional change. In many instances, the Council’s more effective bargaining strategies and/or the advent of new, more consensus-oriented norms of inter-institutional cooperation have resulted in maintaining a high level of policy stability regardless of new decision-making rules.

The malfunctioning of the Common European Asylum System can be traced back to the principle of responsibility established by the Dublin regime. To attenuate its problems, the EU has delegated regulatory competences to Frontex and the European Asylum Support Office (EASO), which have been given a ‘right to intervene’ in those Member States that put the system at risk. This article expands Majone's typologies of agents and trustees to explain why and how power has been delegated and the resulting consequences. It includes cases of failed delegation and argues that, although Frontex and EASO should operate as trustees – to prevent co-operation from breaking down – they have not been provided with enough autonomy, which exposes them to capture by particular interests. The reforms show that EU agencies are likely to be used as proxies by a group of strong Member States to monitor and intervene in weaker Member States.

In the European Area of Freedom, Security and Justice (AFSJ) is affected by multiple asymmetries arising from the need for lexibility in the integration strategy with respect to those matters connected with the hard core of State sovereignty. This “variable geometry” has a signiicant impact on the development of a coherent status for third country nationals through a genuine Common Immigration Policy. The particular situation of Gibraltar is very illustrative in this respect, because here, the speciicities of its status both in relation to EU law and international law converge with a differentiated approach to the Schengen acquis, and with an opt-out to the Common Migration Policy.
This article discusses some of the disruptions caused by variable integration in the AFSJ, in
light of the particular example of the situation of Moroccan workers in Gibraltar, in relation to which this amalgam of legal speciicities has resulted in a situation of reduced mobility and isolation from some positive legal developments in the ield of the Common Migration Policy.

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.

"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."

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.

Nel presente contributo, dopo aver esaminato i motivi che hanno indotto l'Unione europea a predisporre una gestione integrata delle frontiere esterne degli Stati, si è proceduto, in primo luogo, ad analizzare le disposizioni previste nei Trattati europei in materia e, poi, ci si è soffermati sull'origine, la struttura e i compiti dell'Agenzia europea per la gestione della cooperazione internazionale alle frontiere esterne degli Stati membri dell'Unione europea (FRONTEX) e sul nuovo ruolo " rafforzato " che tale Agenzia assumerà in seguito all'approvazione definitiva della Proposta di Regolamento COM (2015) 671 del Parlamento europeo e del Consiglio relativo alla Guardia costiera e di frontiera europea.

This article examines the formal and informal practices of two champions of opting out, the United Kingdom and Denmark, in the area of Justice and Home Affairs. On the surface, both countries have chosen to avoid further integration within this policy area to safeguard national autonomy. Foreign policy experts have argued that national reservations lead to the loss of influence and possibly second-class membership, and legal scholars describe substantial opt-outs as a ‘hijacking’ of the acquis communautaire. This article demonstrates that opting out does not necessarily imply that member states are out in the cold. Both the UK and Denmark, it is argued, have influence and adapt to new EU legislation, even in politically sensitive areas covered by their protocols. National opt-outs are pragmatically circumvented in the consensus-oriented Council of Ministers.

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.

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.