Summary The area of freedom, security and justice (AFSJ) (including case law)
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Course
European Law
Institution
Universiteit Utrecht (UU)
Dit is een samenvatting voor het vak European Law en gaat over the area of freedom, security and justice (AFSJ). De samenvatting is in het Engels en bevat ook de jurisprudentie behorende bij het thema.
Summary week 19
Chapter 31 – the area of freedom, security and justice (AFSJ)
31.1. introduction
The creation of an AFSJ constitutes one of the objectives of the EU set out in
Article 3(2) TEU.
The ordinary legislative procedure under which the Commission has the exclusive
right to initiate legislative proposals, and legislation is adopted jointly by the EP
and the Council voting by QMV, has become the general rule in respect of the
adoption of measures in the AFSJ. Exceptions to this rule:
- Sometimes the Commission shares the right to initiate legislative proposals
with MS (76 TFEU)
- Sometimes an unanimous vote in the Council is required
The ECJ has jurisdiction over all measures relating to the creation of the AFSJ.
But see 276 TFEU. The ECJ has no jurisdiction to review internal situations.
National parliaments have been assigned an important role in the AFSJ. Think
about the yellow card procedure and the principle of subsidiarity.
31.2. opt-out possibilities and other special arrangements
applicable to the AFSJ
On the one hand, the ToL allows opt-out possibilities and, on the other, facilitates
‘enhanced co-operation’ (verbeterde/nauwere samenwerking).
MS have complete freedom to decide whether to participate in the adoption of a
new Schengen measure and in the amendment of any Schengen measure in
which they have participated.
There are also States which participate in the Schengen acquis but which are not
MS of the EU. They can participate in Council meetings when it deals with
Schengen items and express their views on them but have no voting rights. They
are, nevertheless, bound by measures adopted by the Council.
31.3. the definition of the AFSJ
The term is flexible enough to encompass the following policies: asylum,
immigration, visas, border controls, judicial co-operation in civil matters, judicial
and police co-operation in criminal matters.
There is no definition of the concepts of ‘freedom’, ‘security’ and ‘justice’.
Freedom means more than freedom of movement, it includes ‘freedom to live in a
law-abiding (ordelievend) environment in the knowledge that public authorities
are using everything in their individual and collective power to combat and
contain those who seek to deny or abuse that freedom. Accordingly, the concept
of freedom is linked to the concept of security, in that it includes freedom from
threats posed by criminals. It can be argued that the term freedom implicitly
includes all freedoms which have been conferred on EU citizens.
The concept of security has a similar meaning as under national law. It means
that the EU shall ensure that EU citizens enjoy a high level of internal security,
, i.e. freedom from crime. But see art 72 TFEU any action at EU level will be
complementary and subject to the principle of subsidiarity.
The concept of justice: EU citizens are not discouraged or prevented from
exercising their rights by divergences and differences between national justice
systems. The justice dimension of the AFSJ is based on judicial co-operation
between MS. In order to remove obstacles resulting from differences in national
justice systems, the EU must ensure that either on the basis of the principle of
mutual recognition, or by means of harmonisation legislation, judgments and
other similar decisions in civil and criminal matters given in one MS are
recognised in another MS, and that EU citizens have access to justice in respect
of matters with a cross-border dimension.
31.4. the Schengen acquis
The Schengen acquis is incorporated into the framework of the EU. Apart from
opt-out possibilities granted to the UK, Ireland and Denmark and special
arrangements for non-EU States participating in the Schengen system, the
Schengen acquis applies to all MS. There are no possibilities for opt-outs by
candidate States when they join the EU.
31.4.1. a brief history of the Schengen system
Gradual abolition of checks at common borders.
Provides that border controls should be abolished between territories of the
contracting parties.
The Commission had the status of observer at the Schengen meetings and the
Schengen system was subordinated to EC law by means of he compatibility
requirement established in the Schengen agreement, which stated that the
Schengen provisions should apply only if they were compatible with EC law. For
those reasons it was quite easy to incorporate the Schengen system into the EC
Treaty.
MS that joined the EU after 1 May 2004 are bound by the Schengen acquis, but
certain provisions will apply to them only after abolition of border controls at their
borders adjacent to States participating in the Schengen system.
The incorporation of the Schengen system into the framework of the EU means
that all principles of EU law are applicable to the Schengen acquis and that EU
institutions are supervising its proper implementation.
31.4.2. Membership of the Schengen area
22 EU countries (UK and Ireland are outside the Schengen area) and 4 non-EU
countries.
31.4.3. the main features of the Schengen II agreement
The main features of the Schengen II agreement are:
- It creates a territory without internal borders. However, when travelling by
air, passports or national ID cards must usually be shown. This is not
required under the Schengen system but constitutes an international air
security measure. There are passport checks between two EU MS when
one of them is a non-Schengen MS.
- It introduces tight controls on non-EU nationals entering the Schengen
territory. These are aimed at eliminating illegal immigration and combating
crime. A Schengen visa covers all Schengen territory. If non-EU nationals
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